Cavanagh and Hennessy

[2017] FCCA 2057

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVANAGH & HENNESSY [2017] FCCA 2057

Catchwords:
FAMILY LAW – Property dispute arising from de facto relationship – dispute as to duration of relationship – disputes as to contributions.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Stanford & Stanford (2012) 247 CLR 108

Applicant: MR CAVANAGH

Respondent: MS HENNESSY

File Number: DGC 3633 of 2015

Judgment of: Judge Burchardt

Hearing date: 14 August 2017

Date of Last Submission: 14 August 2017

Delivered at: Melbourne

Delivered on: 15 September 2017

REPRESENTATION

Counsel for the Applicant: Ms O’Connell

Solicitors for the Applicant: Fiona R Mcgregor

Counsel for the Respondent: Mr O’Connor

Solicitors for the Respondent: Bella & Associates

ORDERS

1. Within 60 days of the date of the making of this order the respondent pay to the applicant the sum of $240,000.

2. Contemporaneously with the payment referred to in paragraph 1 hereof the applicant provide to the respondent a withdrawal of caveat.

3. In the event that the whole of the payment has not been made by the due date, then the real property be forthwith offered for sale on the following terms and conditions:

   (a)The selling agent be as agreed between the applicant and the respondent and if there is no agreement, as nominated by the President of the REIV;

   (b)The conveyancer for the sale be as agreed between the parties but if there is no agreement, then as nominated by the President of the Law Institute;

   (c)The property be offered for sale on such terms and conditions as the parties can agree but if they cannot agree, then as nominated appropriate by the appointed selling agent.

4. Upon a sale being achieved the proceeds of sale be disbursed as follows:

   (a)In payment of the costs, commissions and expenses of sale;

   (b)To discharge any mortgage or any other encumbrance affecting the real property;

   (c)The balance to be divided 30% to the applicant and 70% to the respondent.

5. Orders 6 to 8 are binding on the trustee of (omitted) Super.

6. Pursuant to s.90MT(4) the base amount to be allocated to Ms Hennessy out of the superannuation interest of Mr Cavanagh is $115,369.00. 

7. Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable with respect to the interest held by Mr Cavanagh in the (omitted) Super Fund, Ms Hennessy is entitled to be paid an amount which is calculated in accordance with Part VI of the Family Law (Superannuation) Regulations and there be a corresponding reduction in the amount the said Mr Cavanagh would have had but for these orders.

8. Order 7 of these orders have effect from the operative time and the operative time for the purposes of these orders is four business days after service of this order upon the superannuation fund.

9. Until the happening of:

   (a)The establishment of a separate account in the name of Ms Hennessy in the fund; or

   (b)The transfer or rolling over into another superannuation fund of the payment split created by order 7 hereof; or

   (c)Ms Hennessy satisfying the condition of release and is paid the payment split which was created by order 7 hereof; or

   (d)Ms Hennessy executes a waiver of rights within the meaning of s.90MNZ of the Act in relation to the payment split created by order 7 hereof;

10. The said Mr Cavanagh be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render part of his interest in the fund a non-splittable payment within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the trustee give effect to this order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3633 of 2015

MR CAVANAGH

Applicant

And

MS HENNESSY

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute between parties who never married.  Nonetheless, it will be convenient, given the fact that they both agree they were in a de facto relationship for a period of time, to refer to them as applicant or husband, as the case may be, and respondent or wife. The applicant seeks that there be a superannuation split and adjustment of property, both 55 per cent in his favour.  The respondent wife seeks that there be a 20 per cent distribution of property to the husband but that each party retain their superannuation, this being asserted to be, in total, approximately 42 per cent of the net assets and superannuation combined.  For the reasons that follow, I am going to order that the husband receive 30 per cent of the property and a further adjustment of superannuation interests such that he receive a total of 40 per cent of the pool. 

Stanford & Stanford

1. As the High Court made clear in the case of Stanford & Stanford (2012) 247 CLR 108, the Court’s first task is to ascertain the legal and equitable interest of the parties and determine whether a property adjustment is appropriate.  In this case, however, as in so many, the parties both seek a property adjustment.  The basis upon which they conducted their affairs while they were a couple has ceased and, in the circumstances, it can be readily accepted that it is appropriate that there be an adjustment to the parties’ property interests.

The Pool

1. Following some clarification in evidence-in-chief by the husband, the pool seems to me to be essentially the subject of agreement as follows: 

Agreed Asset Pool

• Former matrimonial home in Property A, $800,000

• Wife's Toyota (omitted), $7,800

• Husband’s (omitted) motorcycle, $3,500

Superannuation

For the wife:

• $205,396

For the husband:

• (omitted) Superannuation: $98,627

• (omitted) Superannuation: $352, 053

• (omitted) Superannuation: $11,865

1. I have omitted the husband’s Mercedes (omitted) which was allotted an estimated value of $12,000 in the wife’s case outline, and also that of the husband, because it has an associated debt of $12,000 with (omitted) Finance.  Counsel for the husband opened the case on this basis and the matter was not explored in cross-examination.

2. The husband’s (omitted) motorbike has long gone and I have not included that.  Likewise, I have not included the parties’ savings or credit card debts as I was once again informed that these were post-separation matters and these aspects of the opening made by Counsel for the husband were not challenged in cross-examination. 

Contribution

1. In large part, this was where the battleground of the parties’ positions took place.  Putting the matter in the round, the husband was at pains to assert that the relationship began in late 2003 or, alternatively, 2004 and lasted until November 2013.  He was also at pains to assert the contributions of the parties were either equal or in his favour as at the start of the relationship.  The wife was equally at pains to suggest that the relationship commenced somewhat later in 2006 and ended when the parties commenced living, separated but under the same roof in 2012. She, likewise, was eager to prove that her contributions at the commencement of the relationship were substantially greater than those of the husband. 

2. I should say at the outset that much of this debate struck me as being somewhat arid, particularly in relation to the respective initial contributions that the parties made.  While clearly not irrelevant, they occupied an excessive amount of the time in the proceeding. 

3. To understand the parties’ positions, it is necessary to set out the disputed narrative, noting those aspects that are not the subject of disagreement.

The Narrative

1. The husband was born on (omitted) 1955 and the wife on (omitted) 1955. They had known one another in their teenage years and reconnected in 2003.  Both were either relatively recently separated from prior partners and/or in the process of finalising the financial consequences of such separation. 

2. Although in his first affidavit, the husband asserted cohabitation commenced in (omitted) 2003, it seems clear from his trial affidavit, filed 13 July 2017, that he moved to Victoria from New South Wales, where he had previously resided, in July 2014 and, initially, went to live with his mother in (omitted).  It is clear from the evidence that the wife had visited him at least once in New South Wales, but given the tyranny of distance, it would seem improbable on any view that the parties cohabited in any meaningful sense before the husband moved to Victoria.  The husband asserts that after some four months of living with his mother, he moved to a granny flat owned by the wife and on a property at Property B.  The husband had a prior interest in a property in New South Wales which, upon settlement of his matrimonial dispute, engendered a net sum of $87,000.

3. In addition to the property at Property B, the wife also had an interest in a property in Property C.  Her interests crystallised upon the finalisation of her property settlement with her former husband, but the facts, figures and dates of this resolution were very much in issue in the proceeding. 

4. The husband’s position was that the wife settled her property matters with her former husband in February 2005 and received modest superannuation together with the Property C and Property B properties.  He asserted that the Property B property was valued at $250,000 at the time and the Property C property at $190,000, being encumbered with loans totalling $250,000, giving a net equity of $190,000. He asserted that the wife had $290,000 at the commencement of the relationship.  He went on to assert that his superannuation was worth $300,000 in 2002 and he referred to the $87,000 payment received from his former wife. 

5. The wife’s position was somewhat different. In her trial affidavit, she deposes that at the commencement of the relationship in July 2004, she was separated from her former husband, Mr R, and had sold the former matrimonial home in Property A realising proceeds of $263,000, of which she received $81,000. She annexed, as exhibit H1, bank records consistent with that position.

6. She deposed that she moved into the Property C property in around mid-2004 and lived there until she sold it in June 2006 when she moved into the Property B property. At paragraph 9 of the affidavit, it is asserted, inconsistently with the immediately preceding remarks that the husband moved into the Property B property (in a granny flat) in late 2005 with the wife. It seems common cause that a son of the wife and a nephew were living in the house and not paying rent. 

7. The wife annexed copies of property orders made between her and her former husband, Mr Hennessy, together with associated bank records (exhibit H5 and H6) which appear to show that following resolution with her former husband, the mortgage on the Property C property was in the total of $86,000. 

8. Likewise, documents exhibited at H7 suggest that the mortgage on the Property B property was approximately $111,000 at this time. Property B appears to have had a value, agreed at least between the wife and her former husband, Mr Hennessy, at the time of settlement between them, of some $270,000. From exhibit H8, it is apparent that the wife’s superannuation as at 30 June 2005, was approximately $46,000.

9. The wife also exhibited as exhibit H8A, a copy of a binding financial agreement between the husband and his former wife. This appears to be executed in 2005 and shows the husband’s superannuation as a value of $154,000, but also shows a prior payment to the husband from his superannuation of $76,474. I note that this is a document in the possession of the wife. The husband had something to say of the wife retaining all his documents following the separation and her possession of this document suggests that, at least in part, he is correct. 

10. From exhibit H10A, it would seem that at the time of the sale of Property C in May 2006, the mortgage then owing was a sum of $84,862. 

11. The wife has also deposed that in October 2012, she sold the property in Property B for $440,000 at a time when the mortgage was $166,552. 

12. In August 2005, the wife purchased in her own name only, the former matrimonial home at Property A for the sum of $320,000. Exhibit H appears to show a loan in respect to the property of $310,000 in December 2005.  It is common cause that in about January or February 2006 the husband’s $85,000 ($87,000 less $2,000 which had been spent, no doubt, on other matters) was applied to the Property A property. The wife also says she contributed $110,000 from the sale proceeds of Property C to the Property A mortgage in May 2006 (exhibit H12). She also contributed $201,169 from the sale proceeds of Property B to Property A (exhibit 17A and 17B). This ultimately discharged the Property A mortgage.

13. Both parties seem to agree that at some point, the husband started making reasonably regular contributions to the parties’ joint finances. The wife sought to characterise these as rent and board, and the husband says that he paid the mortgage. What he really meant to say was that he contributed the moneys necessary to pay the mortgage to an account from which the wife was actually paying it. I will return to this when I come to the oral evidence given. 

14. A further area of dispute between the parties relates to their health. The wife concedes in her affidavit that the husband has had ongoing health difficulties throughout the relationship. She also asserts ill-health on her own part.

15. The husband is employed as a (occupation omitted) earning approximately $81,000 per year. The wife is a (occupation omitted) earning approximately $65,000 per year.

16. Because of the various properties bought and sold, and the competing assertions about them, the factual narrative described above is by no means entirely easy to follow. It is preferable at this stage to concentrate on the evidence given at court.

17. It should be noted that what follows is taken from my notes. It does not purport to be, and plainly is not, a transcript. It records not everything said, but those aspects of the evidence that struck me as being of particular significance.

The Evidence of the Husband

1. In evidence-in-chief, the husband clarified some issues to do with the property pool, as already indicated. He tendered material showing his current superannuation, his tax returns and the binding financial agreement with his former wife, together with a large volume of photographs showing the development of the property from time to time. He also tendered, as exhibit A6, uncontroversially as I understand it, a record showing his retrenchment benefit in November 2009 of $47,429, a substantial amount which was contributed towards the joint benefit of the parties.

2. He also tendered exhibit A7, being a record of his medical conditions, and exhibit A8, letters from September 2004, showing his address on 9 December 2004 at the Property B property and 1 September 2004 at the Property C property. 

3. Under cross-examination, the husband corrected his first affidavit, sworn 20 November 2015. He admitted that he was asserting that the parties started living together in (omitted) 2004. He was living in New South Wales in 2003 and went to live with his mother in (omitted) in about July 2004. He asserted that every month, he paid money to the wife. He denied that this was rent and said he was not a boarder.

4. The husband was cross-examined about his affidavit assertions as to how much renovation work he had done and how much he had paid. He said he had no receipts to prove what he had paid because he did not have the records. He said he had contributed $96,000 to the parties’ wellbeing and that the $85,000 was just one such payment. It emerged that he made transfers to the wife’s account. He said the electricity accounts were in his name as were other matters.

5. He said that the wife has said they would open a (business omitted) on the property in a building already there. He said the drawdown referred to in his first affidavit at paragraph 15 was for the purchase of the mobile home that was put onto the property. When given exhibit H3 showing his residence in (omitted) on 12 April 2005, he said this was not his address at the time and he was not unemployed at that time. The letter was clearly untruthful, therefore, and contrary to its terms, he was in fact employed. 

6. The husband confirmed that he had not asked his medical practitioners to go on affidavit. He can, and does, work full time and has worked full time for most of the period from 2008 to 2015. He was unemployed from 2004 until March 2005 and had 18 months of unemployment until 2 September 2005, when he obtained employment as a (occupation omitted). The husband repeated that some inaccuracies in his affidavit derive from the fact that the wife kept all his papers. He did not even know which superannuation funds he was with. He complained that all his records had gone and noted that the events with which the trial was concerned, in part took place a long time ago. He then said he moved in with the respondent in September-October 2004. 

7. He agreed that the mobile home was paid for by drawdowns by the wife on the mortgage, but did not agree that the stumping was paid in that way. He did agree that the sewage and plumbing was paid from the drawdown account. He said he shared the flat in Property B from late 2004, not 2005, and that Property C was a holiday home. He said he visited the wife frequently at (omitted) when he was in (omitted). She moved to Property A in April 2009 and wanted to develop the existing property as a (business omitted). A moveable home was put on it. He had worked on the property on weekends, but she did not. Essentially, despite cross-examination, he stuck to the proposition that he did the renovation both on the mobile home and on the (business omitted).  He said the wife had one weekend off per month and conceded that she sanded the floors and prepared the curtains.  He denied that the relationship broke down in 2012, but admitted that he was removed on 21 November 2013. He said the suggestion that the wife had packed his possessions 12 months previously into another room was a total fabrication. He said his possessions were moved in November 2013 about two weeks before the Intervention Order was taken out.

The Evidence of the Wife

1. The wife confirmed her employment in her affidavit and financial statement. 

2. In cross-examination, the wife admitted the parties reconnected in (omitted) 2003, having known one another previously as teenagers. He was in New South Wales and she visited him there once. The husband relocated to (omitted) in his mother’s house in July 2004, at which time the wife said she was living on Property C.  Her former husband, son and nephew were in the property in Property B. She said it was not true that the husband moved in in November 2004.

3. She was working shift work and had two weekends off per month. She mainly worked nightshifts. She said he would come to her or she would go to (omitted). She said it was a girlfriend/boyfriend arrangement from June 2004, and that he did not live in Property C from September 2004 onwards, nor Property B from December 2004.  Her husband was still there.  She said the husband moved to Property B in late 2005 and they started living together in 2006.  The Property D money went into a trust account and was used to pay down existing liabilities.

4. The wife said the husband got a job in mid-2005 before the parties lived together.  She is not aware of what he may have earned.  The husband then got a job with (employer omitted) in November 2006.  Although the wife did not know how much he earned, she was quite prepared to concede that it was substantially more than her own earnings.  The husband was then made redundant in 2010 and received a payment of $47,000.  The wife says that this was not applied to the mortgage of the Property A property, nor was his pay put to the mortgage or their joint expenses.  She did concede that $85,000 was brought in by the husband and applied straight into the mortgage.  She did not take issue with the husband’s present superannuation total of $462,000.

1. Although she had seen the binding financial agreement, she could not say how much superannuation the husband had at the start of the relationship.  The wife said that the value allotted to the Property C property on 16 March 2003 was just an estimate and in the ultimate, that she paid $14,629 on capital gains tax in respect to the Property C property.  She sold the Property C property for the parties to live together and they bought Property A in 2005.  The loan was $310,000 in her name alone.  She said that she was the one with her name on it but noteworthily, “We had plans”.  The husband paid $1500 or $2000 per month, but she never told him the amount that was required to be paid on the mortgage.  She sold Property C and paid off Property A.  She was adamant that she obtained the mortgage on Property A on her own income and only sold Property C because it was part of the plan.  Her son and his partner had lived in the Property B property until 2012, but rent-free.  She has had the same job for 25 years and earned approximately $60,000 but could easily earn up to $80,000 if she wished.  She sold Property B in October 2012 and cleared $201,000.  This was applied into the Property A property and it paid off the mortgage.  She has stayed since mortgage free. 

2. The Wife accepted that the husband did work on the properties and that he had health issues.  He said there are still a few bits and pieces belonging to the husband at the property.  The husband’s (omitted) uniform is no longer at Property A.  The husband left stuff in a shed and she was away a lot.  She said the next door owner’s daughter sold the chattels which the husband left there.  She said the husband collected most of his tools and some had been taken to (omitted) even before separation.  She gave details of some chattels that she was prepared for the husband to collect which I required to be identified before the parties left Court, and which I assume have been returned to him.  She said the husband had no furniture and that all the furniture in the property originally was hers.  Given that she said she had three properties and furniture coming out of her ears before they moved to Property A, I accept this evidence. 

3. In re-examination, the wife confirmed that the husband moved to Property B in 2005. He paid $1200 to her in that year and she was unable to say how much in 2006, but it might be $16,000.  Following a look at some records, she said the husband paid $1000 on 4 August 2006 and $2000 on 7 February 2006. 

Some Brief Remarks About the Credit of the Parties

1. The husband answered questions, generally, fairly responsively.  Nonetheless, and accepting that some of the events about which he was questioned were a long time ago, he was, in my view, a poor historian, changing his story on occasions.  He was keen to volunteer matters to the wife’s detriment and, taken overall, he was simply not a very precise witness.  This is not to suggest that he was, in any sense, knowingly untruthful but his recall was simply not that great, even accepting as I do, that the wife retained all or the vast majority of papers at the time of separation.  The wife under cross-examination was prepared to make a fair concession that the husband’s income was greater than hers.  She also was direct and responsive to questions put and had a better memory.  Taken overall, she was probably the more reliable of the witnesses.

Findings About The Facts

1. It is not in dispute that the parties reconnected in late 2003, having not been in touch with one another since they were teenagers.  The wife, as she herself said, went to visit him at least once in New South Wales and it is obvious that his relocation to (omitted) in 2004 was interrelated not only with the breakup of his former marriage, but also with the romantic relationship that had already commenced, as I find, before then.  Nonetheless, they did not immediately cohabit.  The wife did, indeed, receive $81,000 from the sale of the Property D property as part of her prior property settlement, but exactly where that went remains to my mind unclear.  What is clear, however, is that she obtained through her settlement with her former husband, the properties at Property C and Property B.  I find the wife’s evidence about the amounts of the value of the property and the mortgages on them relatively convincing, but it should be noted that there are no sworn valuations of those properties at that time.  And indeed, ultimately, in my view, this does not matter much.  The parties obviously spent time together at both Property C and at Property B from time to time.  I accept the wife’s evidence that she remained at Property C until it was sold and thereafter, moved into Property B until such time as they ultimately moved into Property A together.  The husband moved into Property B, as I find, in late 2005, but it is plain that even by that stage, the parties were contemplating a continuing lifestyle together that went far beyond boyfriend and girlfriend. 

2. It is not possible to say at what point the romantic relationship that commenced in 2004 transmogrified into a de facto relationship as such.  The parties, in some sense, have never adopted some aspects of a de facto relationship.  They never had joint bank accounts.  Nonetheless, and this is a matter of reconstruction that the parties themselves would not have been aware of at the time, the parties must have moved to a shared de facto relationship at some point between 2004 and late 2005.  In my opinion, the precise commencement date is not as vital as the parties themselves seem to consider it. 

3. The parties plainly had moved towards the major step of buying the property at Property A, doing up the property already there and making it into a (business omitted), and then living on what, on any view, is a fairly substantial property.  Property A was bought in the wife’s name alone, and I accept her evidence that she obtained the mortgage on her own.  Nonetheless, it was plainly intended that this would be a joint venture to which they would both contribute, as they were able.  In effect, the husband put the entirety of the proceeds of his own matrimonial settlement into that property.  That was in the sum of $87,000 as I find, even though only $85,000 was applied to the mortgage.

4. What is also apparent is that the amounts of monies deposited by the wife into Property A represents a substantially greater proportion of the purchase price, with the purchase price being $320,000.  The husband put in $85,000.  The wife must also have put in the stamp duty, but that would not be a wildly extravagant figure on a purchase price of that order.  In broad and round terms, the husband put in a bit more than 25 per cent of the purchase price.

5. Once the parties lived in the property, the husband did far more work on the renovations than the wife.  Much of the work was physical manual labouring, and no one sought to dissuade me when I offered the view during the currency of the hearing, that it is probable that he did most of the manual labouring, and the wife did such other tasks as she was able.  I note that on any version of the facts, the husband worked on the property far more weekends than the wife.  He had far more weekends off than her for a start.

6. There are no valuations that would enable the Court to come to any view as to what extent the work done by either of the parties improved the value of the property. As I find, both did their best to contribute to its improvement, but it is clear that the husband did far more than the wife.  It is not possible to say how much, but it is clear that that is the case.

7. As earlier indicated, the parties spent a certain amount of time trying to convince the Court as to the extent of the parties’ contributions at the commencement of the relationship.  The evidence suggests that the wife’s superannuation has increased from about $46,000 to over $200,000 during the relationship.  The binding financial agreement suggest that the husband had had in excess of $200,000 but had taken $75,000 as a part payment before the binding financial agreement was reached.  There is no evidence to suggest exactly how his superannuation increased, but doing the best I can in the circumstances, I would find that this superannuation was of the order suggested in the binding financial agreement at the start of the relationship.

8. These parties were together from 2005 until 2013.  Although the wife asserts that the husband moved out effectively in 2012, the fact is he was still in the property, and still, as I find, contributing regular amounts of money towards the common weal of the relationship, as it were.  Although the amounts he contributed at the start were small, they were never bed and board.  The parties were, at the very least, in a romantic relationship and the wife’s endeavours to characterise his contributions as bed and board are to be rejected in their entirety.  They do her no credit.

9. Given that the relationship lasted some eight or more years, the notion that each should now be put back into the position they were at at the commencement of the relationship would be to ignore their common endeavours during that period, and the significant, albeit not precisely quantifiable, work performed by the husband on the property.  The extensive photographs taken show that both the mobile home and the original building have been significantly upgraded over time.  While other persons may well have worked on the property also, there is no doubt that the husband’s endeavours have been of material benefit to the wife, who remains in sole possession.

10. Bearing in mind the far greater direct financial contribution to the acquisition of the Property A property made by the wife, and rounding off, as it were, to give some weight to the husband’s probably greater renovation contribution, I would assess the parties’ contributions as to property (leaving aside superannuation) as being 30 per cent to the husband and 70 per cent of the wife.  It should be noted that this is in no sense an arithmetical equation.  It also gives weight to the fact that it was the wife’s ready availability of resources that enabled this property to be purchased in such a relatively beneficent way.

Section 75(2) matters

1. The medical evidence given by the husband is unsatisfactory.  Even the medical records tendered (presumably as a business record, they were not subject to objection) do not in any very precise way tell the Court what it might wish to know about the husband’s position.  While the wife concedes that the husband has been significantly ill during the currency of the relationship, he is still in gainful employment, aged 62. He is relatively close to retirement and/or accessing his superannuation in any event.

2. The wife’s earning capacity is likely always to be at best no greater than that of the husband, and they are of very similar age.  There is no compelling medical material before the Court as to the wife’s state of health.  At the moment, he earns $85,000 and she earns $60,000 but could earn somewhat more.  Given that she works shift work, it is understandable that she may not want to work more than she has to. In my view, there should be no adjustment in respect of future needs.

   Just and Equitable

3. This is a curious case in which the husband has substantially greater superannuation than the wife, being twice as much as hers.  He wishes to have as much of the property as he can get to enable him to repurchase a property and have somewhere to live.  He seeks that there be a superannuation split.  The wife resists this and wants to stay mortgage free in the home.

4. Given all the relevant considerations, in my view, there should be an adjustment such that the husband receives 30 per cent of the value of the parties’ property, but receives overall, 40 per cent of the assets inclusive of superannuation.  In my view, this will give the husband enough money with which to purchase a property but should not leave the wife bereft, as she will receive a significant increase in superannuation as a result.  I request the parties to draw up minutes of orders to reflect these conclusions, given that I am not aware of the extent to which the wife will be able to pay the husband without selling the Property A property.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  15 September 2017