Connor and Connor

FAMILY COURT OF AUSTRALIA

CONNOR & CONNOR

[2009] FamCA 160

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Adjustment for other matters

Family Law Act 1975 (Cth) ss 75, 79

In the Marriage of Hickey (2003) 30 Fam LR 355
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
JEL and DDF [2000] FamCA 1353
In the Marriage ofFerraro (1993) FLC 92-335
McLay v McLay (1996) FLC 92-66
Stay v Stay (1997) FLC 92-751
In the Marriage of Figgins (2002) 29 Fam LR 544
Downey and Downey [2005] FamCA 1462

APPLICANT:

Mr Connor

RESPONDENT:

Ms Connor

FILE NUMBER:

SYC

8675

2007

DATE DELIVERED:

12 March 2009

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATES:

23, 24 & 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms A. Rees
SOLICITOR FOR THE APPLICANT:	K.R. Barnes & Company

COUNSEL FOR THE RESPONDENT:	Mr G. Foster
SOLICITOR FOR THE RESPONDENT:	S. Sapuppo

Orders

Within two (2) months of these Orders the wife shall pay to the husband the sum of $461,221.60, and simultaneously with the said payment the husband shall transfer all his right title and interest in the property situate and known as W, being the property identified by Folio Identifier … (hereinafter referred to as “'the Former Matrimonial Home") to the wife; and the wife shall forthwith do all such things as to have the husband’s name removed from any mortgage encumbering the former matrimonial home, and in any event the wife shall indemnify the husband in relation to all mortgage payments, costs, penalties or other charges flowing from the said mortgage from date of these Orders forward.
In the event that the wife fails to comply with Order 1, forthwith upon that failure the husband and the wife shall do all necessary acts and things to cause the former matrimonial home to be sold by private treaty within four (4) months of the date of these Orders and upon the following terms and conditions:
(a)The Real Estate Agent to act as the Real Estate Agent on the sale be as agreed between the husband and the wife and in the absence of agreement as determined by the President for the time being of the Real Estate Institute of NSW (REI) or his or her nominee;
(b)The solicitor for the wife act for the parties on the said sale;
(c)The price at which the former matrimonial home is to be sold by private treaty and any special terms and conditions of sale are to be agreed to between the parties, and in the absence of agreement between the parties as determined by the President for the time being of the REI, or his or her nominee which terms and conditions are to be binding upon the parties.
In the event Contracts for the Sale of the former matrimonial by private treaty are not exchanged as provided above then the former matrimonial home be sold by public auction upon the following terms and conditions:-
(a)The same Agent and Solicitor as were appointed pursuant to Order 2 hereof shall act.
(b)The sale by auction take place no later than six (6) weeks after the expiration of the four (4) months referred to in Order 2 hereof at a reserve price as the husband and the wife may agree to in writing and in default of agreement at a price and upon such terms and conditions determined by the Auctioneer appointed to effect the auction sale and that any such decisions, are binding upon the parties;
(c)If following the first auction the highest bid offered for the former matrimonial home does not reach the reserve price and the parties are subsequently unable to agree to the sale of the property by private treaty at a reduced price, then the property is again to be offered for sale on a date no later than six (6) weeks after the date of the auction referred to in (b) hereof at a reserve price to be determined by the Agent appointed to conduct the sale upon the same terms and conditions as hereinbefore set out or as agreed to in writing by the parties;
(d)Both parties are to attend the auction sales hereinbefore referred to or are to empower his or her Solicitor to attend such auction sale on behalf of that party with full and complete authority to act on their behalf in relation to such sale, and in the event that the property does not reach the reserve price as either agreed to by the parties or determined by the Agent appointed to conduct such a sale then the parties are then to enter into negotiations with prospective purchasers for a sale by private treaty at a price to be agreed to by the parties and in default of agreement then at a price and upon the terms and conditions determined by the Agent appointed to conduct the sale upon the same terms as provided above so as to achieve a sale.
Upon settlement of the sale the parties shall do all acts and things necessary to apply the net proceeds of sale after adjustments for rates and utilities, as follows:
(a)in the payment of all costs of sale including agents commission, advertising costs and legal fees;
(b)in the discharge of the mortgage to the Commonwealth Bank;
(c)in the event that the husband was not paid $461,221.60 in accordance with Order 1, by a payment to the husband of 52% of the remaining net proceeds; and
(e)in payment of the balance to the wife.
The husband shall vacate the former matrimonial home no later than 3 weeks prior to the date of settlement of the sale.
The wife is declared the owner to the exclusion of the husband of the Ford Fairlane Registration No. … and the husband shall do all necessary acts and things to cause of all his right, title and interest in that vehicle to be transferred to the wife.
Apart from the list of household contents and furniture attached hereto marked "A", the wife is declared the owner to the exclusion of the husband of all right, title and interest in household contents and furniture.
The wife shall transfer all her right, title and interest in the list of household contents and furniture attached hereto marked "A’', to the husband and he is declared the owner to the exclusion of the wife of those items of household contents and furniture.
Otherwise the parties are each declared the owner to the exclusion of the other of all right, title and interest in any property in his or her possession, including, their interests in superannuation funds, shares, funds standing to the credit of any bank accounts in their names and all other personalty in their respective possession or control.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, that the Registrar of the Family Court, Sydney is appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of that party and to do all acts and things necessary to give validity and operation to the said deed or instrument.
That each party is at liberty upon seven days notice to apply for further orders in relation to the implementation of these Orders.
Otherwise the husband’s Application and the wife’s Response are dismissed.

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

ANNEXURE " A "

Music Albums
Mini discs
Thermometer
Navigation set
Lock and Key
Pocket watch
Johnson Bros soup Tureen
Cork screw
Cider jar table lamp
Carraige lamps
Grandfather chair
Mahogany bookcase
Georgian desk
Bookcase
Wedgewood Chartley
Coffeepot
Globe cream jug
Globe sugar bowl
Sugar bowl
12 piece coffee service
2/8” plates
Royal Crown Derby tea strainer
Cottage teapot
6/Stuart Glengary wine glasses
4/Stuart Glengary rum glasses
2/Stuart brandy glasses
1 Glengary spirit decanter
1/antique sherry decanter
4/1 pint beer mugs
2/half pint beer mugs
“Royal Doulton” Morning Glory figure
Onyx lighter
Hampton Court Mug and Saucer
German stein
Solitare number puzzle
Wooden Gondala
Wooden flute
Continental plane
FunJador ashtray
Letter rack
Guitar and case
Black suitcase
Black Samsonite cabin bag
“pulsar” quartz wristwatch
Pocket watch
Silver spoon
Parisium scene painting
Holcombe beach view painting
Holcombe Village photo
Holcombe Village photo
[J] standing by aeroplane photo Richmond Line train photo
1990 Coalport plates
Dawn Patrol
Evening Sortie
Flight Through The Clouds
Out On Exercise
Iron cross
Cannon shell
Bullet case from dunquirk
WW2 pilots logbook
Pilots wrist strap
Corgi car Collection
Stamp collection
Nikon Camera
1930's Kodak camera
Drawing board
Tee square
4 Wade porcelain decanters
3 flying birds
Sulky

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 8675 OF 2007

MR CONNOR

Applicant

And

MS CONNOR

Respondent

REASONS FOR JUDGMENT

After living together for about 34 years the parties cannot agree on a settlement of their property. The parties are divorced but for convenience I will refer to them as the husband and wife.

Applications

The terms of the orders sought were something of a moveable feast. The husband sought orders in accordance with a minute of orders attached to his Case Outline document as follows:
MINUTE OF ORDERS SOUGHT
1.That each of the Husband and the Wife do all acts and things to effect the sale of the property at [W] and to pay out the proceeds of the sale in the following manner and priority:
1.1In payment of the mortgage and the Viridian Line of Credit.
1.2In payment of selling costs and legal costs of sale
1.3In payment of the balance, 50% to the Wife and 50% to the Husband.
2.That a splitting order be made so as to divide the Wife’s superannuation entitlements equally between the husband and the Wife.
3.That otherwise each party retain the property in his or her possession.
However, through his counsel the husband indicated his agreement to the wife’s proposal that his settlement be entirely in the form of non-superannuation assets. Thus he did not press for a splitting order.
In relation to the machinery for the sale the husband’s solicitor provided to my chambers at 16.41 on 2 March 2009, the following form of orders:
1.That the Applicant husband and the Respondent wife forthwith do all necessary acts and things to cause the jointly owned property situate at and known as [W], New South Wales being Folio Identifier […] (hereinafter referred to as “the former matrimonial home” to be sold by private treaty within four (4) months of the date of these Orders and upon the following terms and conditions:
(a)That the Real Estate Agent to act as the Real Estate Agent on the sale be as agreed between the Applicant husband and the Respondent wife;
(b)That the Solicitor for the Applicant husband act for the parties on the said sale;
(c)The price at which the former matrimonial home is to be sold by private treaty and any special terms and conditions of sale are to be agreed to between the parties, and in the absence of agreement between the parties as determined by the President for the time being of the REI, or his nominee which terms and conditions are to be binding upon the parties.
2.That in the event Contracts for the Sale of the former matrimonial by private treaty are not exchanged as hereinbefore provided then the former matrimonial home be sold by public auction upon the following terms and conditions:-
(a)That the same Agent and Solicitor nominated in Order 1 hereof shall act.
(b)That the sale by auction is to take place no later than six (6) weeks after the expiration of the two (2) months referred to in Order 1 hereof at a reserve price as the Applicant husband and the Respondent wife may agree to in writing and in default of agreement at a price and upon such terms and conditions determined by the Auctioneer appointed to effect the auction sale and that any such decisions, are binding upon the parties;
(c)If following the first auction the highest bid offered for the former matrimonial home does not reach the reserve price and the parties are subsequently unable to agree to the sale of the property by private treaty at a reduced price, then the property is again to be offered for sale on a date no later than six (6) weeks after the date of the auction referred to in Order 2(b) hereof at a reserve price to be determined by the Agent appointed to conduct the sale upon the same terms and conditions as hereinbefore set out or as agreed to in writing by the parties;
(d)Both parties are to attend the auction sales hereinbefore referred to or are to empower his or her Solicitor to attend such auction sale on behalf of the parties with full and complete authority to act on their behalf in relation to such sale, and in the event that the property does not reach the reserve price as either agreed to by the parties or determined by the Agent appointed to conduct such a sale then the parties are then to enter into negotiations with prospective purchasers for a sale by private treaty at a price to be agreed to by the parties and in default of agreement then at a price and upon the terms and conditions determined by the Agent appointed to conduct the sale upon the same terms as hereinbefore provided so as to achieve a sale.
In the accompanying letter Mr Barnes says:
Further to my most recent e-mail dated 26^th February, 2009, I am now able to attach and/or note the following:-
1.Attached is a Minute agreed by the parties running from clause 1 to clause 2(d) inclusive and which deals with the agreed mechanics for the sale of the [W] home.
2.You will see the parties have not, as yet, nominated a particular Real Estate Agent to market the property for sale. [The husband] and [the wife] are continuing to make enquiries in this regard. It is noted that in the event a dispute arises and clause 1(a) does not materialise a mutually acceptable result, it would seem clause 1(c) covers the situation to place the President for the time being of the Real Estate Institute of New South Wales in a position of making the ultimate decision on the Agent to act.
Both Mr Sapuppo and the writer hope this Minute is of assistance and the parties now await Judgement at His Honour’s convenience. If any further information is required, by all means make contact with us.
The wife did not press for orders in accordance with a minute of orders provided with her Case Outline. She seeks that the husband receive 20% of the assets – reflected in an adjustment of non-superannuation assets, specifically as a proportion of the net sale proceeds of the W home.
In accordance with a minute provided to my chambers at 12.06 on 2 March 2009, I was advised that the wife seeks the following orders:
1. That the Wife (hereinafter referred to as "the Respondent") pay to the Husband (hereinafter referred to as "the Applicant") the sum of $210,570 within 60 days of these orders, and simultaneously with the said payment; the Applicant to transfer all his right title and interest in the property situate and known as [W property] also being Folio Identifier […] (hereinafter referred to as “'the former Matrimonial Home") to the Respondent; and the Respondent forthwith to do all such things as to have the Applicant’s name removed from any mortgage encumbering same, and in any event the Respondent to indemnify the Applicant of all mortgage payments, costs, penalties or other charges flowing from the said mortgage from date of these Orders forward.
2. That, should the Respondent not pay to the Applicant in accordance with Paragraph 1 of these Orders, then: the Respondent Wife and the Applicant Husband join in to do all necessary acts and things to cause the Former Matrimonial Home to be listed for sale by private treaty within 60 days of these orders with a real estate agent upon the following terms and conditions:-
(a)That either party may approach real estate agents and do any other necessary act or thing or arrange for the sale of the property by private treaty or auction as follows:
(b)That the solicitor for the Respondent Solicitor is to be appointed Solicitor to act for the parties on the said sale.
(c)The price at which the Former Matrimonial Home is to be sold by private treaty and any special terms and conditions of sale are to be agreed to between the parties.
(d)However, if there is any dispute in relation to any matters referred to in sub-paragraph (c) above, that dispute is to be resolved by the agent appointed to sell the said property by private treaty and the appointment of such is not as an arbitrator and the decision of such agents is to be binding upon the parties.
(e)That in default of sale of the Former Matrimonial Home by private treaty then the Former Matrimonial Home shall be sold by public auction upon the terms and conditions set out in paragraph 2 hereof.
Order that in the event that contracts for the sale of the Former Matrimonial Home by private treaty, have not been exchanged by 4p.m. a day four calendar months from the date of these orders, then either party may request the other in writing, that the Former Matrimonial Home be sold by public auction upon the following terms and conditions:-
(a)That the Respondent is to have the authority to: appoint an auctioneer to conduct the said sale by public auction, and to: transfer the property so sold by public auction to the purchaser or purchasers and to receive and disburse the purchase monies.
(b)That the solicitor for the Respondent to be appointed Solicitor to act for the parties on the said sale.
(c)That the sale by auction (‘the first auction’) is to take place no later than 6 weeks after the giving of the notice referred to above, at a reserve price as the Respondent and the Applicant may agree to in writing and in default of such agreement between the Respondent and the Applicant at a price and upon such terms and conditions determined by the agent or auctioneer appointed to effect such auction sale and his appointment as such is not as an arbitrator and such decision is binding upon the parties.
(d)If following the first auction the highest bid offered for the Former Matrimonial Home does not reach the reserve price and the parties are subsequently unable to agree to the sale of the property, by private treaty at a reduced price, then the property is again to be offered for sale on a date no later than 6 weeks after the date of the first auction sale referred to in sub-paragraph (c) above without any, or as agreed to in writing by the parties.
(e)Both parties are to attend the auction sale referred to in paragraph (c) & (d) above, or are to empower his or her solicitor to attend such auction sale on behalf of that party with full and complete authority to act on his or her behalf in relation to such sale, and in the event that the property does not reach the reserve price as agreed to by the parties or determined by the agent appointed to conduct either such sale, then the parties are to enter into negotiations with prospective purchasers for a sale by private treaty at a price to be agreed to by the parties and the prospective purchasers.
(f)Each party will contribute equally in advance to the cost of conducting the auction sales if auction sales are so required.
3. Order that the proceeds of any sale of the Former Matrimonial Home pursuant to these orders, after deducting the amounts referred to in paragraph 4 hereof, be divided so as to give to the Applicant the sum C to be calculated as follows:
Where A = (Sale price of house less costs as set out in Paragraph 4 (a) – (c) below, + $167848 [representing the net marital assets apart from the matrimonial home as agreed on joint balance sheet ) divided by 5; and
B = $12560 [representing the net marital assets retained by the Husband as agreed on joint balance sheet ], then
C = A minus B; with the remainder to the Applicant.
4.Order that the following amounts be deducted from the purchase money and paid out by the party conducting the said sale of the Former Matrimonial Home before any money is paid out to either the Respondent or the Applicant pursuant to these orders:-
(a)The costs, expenses and commission of the real estate agent or agents on the sale of the property.
(b)The costs, fees and disbursements of the Solicitor or Solicitors acting for the parties on the sale of the property.
(c)The amount owing of the mortgage owing in respect of the mortgage registered against the said property.
5.Order that the Applicant vacate the Former Matrimonial Home no later than 4 weeks after the date of these orders.
6.That the Respondent remain the owner and be declared the owner to the exclusion of the Applicant of the Ford Fairlane Registration No. […] and the Applicant do all necessary acts and things to cause of all his right, title and interest in the Ford Fairlane Registration No. […] to be transferred to the Respondent.
7.That apart from the list of household contents and furniture attached hereto marked "A", the Respondent Wife (hereinafter referred to as "the Respondent") remain the owner and be declared the owner to the exclusion of the Applicant Husband of all right, title and interest in household contents and furniture.
8.That Respondent transfer all her right, title and interest in the list of household contents and furniture attached hereto marked "A’', to the Applicant and the Applicant remain the owner and be declared the owner to the exclusion of the Respondent of right, title and interest in the list of household contents and furniture attached hereto marked "A".
9.Order that the Respondent do all necessary acts and things to cause, her right title and interest in the IAG shares currently held in the name of the Applicant to be transferred to the Applicant.
10.Order that the Respondent do all necessary acts and things to cause her right title and interest in the burial plot located at the Northern Suburbs Cemetery currently held in the name of the Applicant to be transferred to the Applicant.
11.Order that all parties be otherwise declared the owner to the exclusion of the other of all right, title and interest in any property in his or her possession, including, Superannuation funds, and funds standing to the credit of any bank accounts in their names.
12.That each party be solely entitled to the exclusion of the other to superannuation entitlements (if any) deemed to be in the person who is within named as the worker or whose age or working future provides the conditions for payments out of such entitlement.
13.That other than hereinbefore provided the Respondent be declared the sole and beneficial owner of all other items of property presently in her possession and control and including but not limited to money, shares, motor vehicles and personal effects.
14.That other than hereinbefore provided the Applicant be declared the sole and beneficial owner of all other items of property presently in his possession and control and including but not limited to money, shares, motor vehicles and personal effects.
13.That in the event that either the Applicant or Respondent refuses or neglects to execute any deed or instrument necessary to give effect to these orders, that the Registrar of the Family Court, Sydney be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the Applicant or the Respondent and to do all acts and things necessary to give validity and operation to the said deed or instrument.
14. That each party shall be at liberty upon seven days notice to apply for further orders in relation to the implementation of these orders.
15. That otherwise all other applications are dismissed.

ANNEXURE " A " REFERRED TO IN ORDERS 7 and 8

Music Albums
Mini discs
Thermometer
Navigation set
Lock and Key
Pocket watch
Johnson Bros soup Tureen
Cork screw
Cider jar table lamp
Carraige lamps
Grandfather chair
Mahogany bookcase
Georgian desk
Bookcase
Wedgewood Chartley
Coffeepot
Globe cream jug
Globe sugar bowl
Sugar bowl
12 piece coffee service
2/8” plates
Royal Crown Derby tea strainer
Cottage teapot
6/Stuart Glengary wine glasses
4/Stuart Glengary rum glasses
2/Stuart brandy glasses
1 Glengary spirit decanter
1/antique sherry decanter
4/1 pint beer mugs
2/half pint beer mugs
“Royal Doulton” Morning Glory figure
Onyx lighter
Hampton Court Mug and Saucer
German stein
Solitare number puzzle
Wooden Gondala
Wooden flute
Continental plane
FunJador ashtray
Letter rack
Guitar and case
Black suitcase
Black Samsonite cabin bag
“pulsar” quartz wristwatch
Pocket watch
Silver spoon
Parisium scene painting
Holcombe beach view painting
Holcombe Village photo
Holcombe Village photo
[J] standing by aeroplane photo Richmond Line train photo
1990 Coalport plates
Dawn Patrol
Evening Sortie
Flight Through The Clouds
Out On Exercise
Iron cross
Cannon shell
Bullet case from dunquirk
WW2 pilots logbook
Pilots wrist strap
Corgi car Collection
Stamp collection
Nikon Camera
1930's Kodak camera
Drawing board
Tee square
4 Wade porcelain decanters
3 flying birds
Sulky

The wife’s solicitor Sal Sapuppo does not consent to the mechanism identified by Mr Barnes in the communications of 2 March 2009. In a letter of 3 March 2009 he says that Mr Barnes draft orders represent the husband’s proposals and not those of the wife. He goes on:
…
Can I clarify that the wife is seeking orders in the proposed wife’s minute of order which contains the mechanism for sale and requires additional orders including an opportunity for the wife to buy the husband out, if that order is made then the wife would require that I be appointed as the Solicitor acting on the sale.
All of which is an argument for the orders sought to be identified at an early stage and in any event prior to the conclusion of the trial. As this dispute arose after the trial, I have not had the benefit of argument in favour of one mechanism or the other. I will make orders and leave it to the parties to bring the matter back on machinery issues.

Affidavits

The sworn written evidence of the parties is:
Affidavit of the husband sworn 12 February 2009 and filed 12 February 2009
Husband’s Financial Statement filed 12 February 2009
Affidavit of the wife filed 6 February 2009
Affidavit of J Connor filed 6 February 2009
Affidavit of L Connor filed 6 February 2009
Affidavit of M Connor filed 6 February 2009
Wife’s Financial Statement filed 14 February 2008

The hearing

The hearing was listed for three days. In fact the hearing took two days but spread over three. Two parenting proceedings were interposed on the first afternoon and that time was lost to this matter. I am grateful to the parties and legal representatives for co-operating in the management of the trial. Some time was lost on the morning of the final day with another interposed case but final submissions were concluded before lunch time and judgment was reserved. It was noted at the conclusion of the hearing that within 7 days :
Ø The wife’s counsel would provide to the husband’s solicitor and to the court:
o a minute of the orders sought by the wife; and
o an aide memoire in relation to post separation contributions by the wife.
Ø Both parties would exchange and submit a form of orders whether agreed or separately, showing the mechanics of the proposed sale of the former matrimonial home;
Ø The husband’s solicitor would provide to the wife’s solicitor and to the court a copy of a document from Centrelink showing the type of benefit the husband receives (there is a suggestion that his benefit is styled to relate to a disability).
I accept that minds might differ about it but it seems to me to have been both unfortunate and unnecessary for the wife to call the parties’ children to give evidence in her case. Not only were they asked to give affidavit evidence but each of them was called to give oral evidence in support of the wife’s case in reply. The children are adults at 23, 22 and 19 years of age at the time of the hearing. Nevertheless they are young people and L and M continue to live in a household with their separated parents. In relation to evidence in chief, the children swore their affidavits before the husband filed his. Thus the wife was not to know that her evidence about parenting matters would not be sufficient until after the children were deposed. The evidence of the children was not determinative of any critical factual issue. Further, in as much as there were differences between their oral evidence and their affidavits or between their evidence and that of their mother, the involvement of the children did not achieve the ends of the wife. Overall their evidence was of marginal assistance at best. However, their involvement exposed them to the likelihood of cross-examination. The husband was left with the choice of instructing his lawyers to cross-examine this children or leaving parts of the wife’s case unchallenged. He instructed his counsel not to cross-examine the children. It is a significant irony that the husband, who is criticised for his parenting performance, was the one to spare the children the stress of being tested on their evidence.
As I say, minds might differ about that issue and it cannot and does not influence the findings of fact or exercise of discretion in these proceedings.

Issues for determination

The case outline document produced on behalf of the wife contained a list of contentious issues. Those issues are:
a)Nature and extent of husband’s contributions by way of claimed renovations on various properties during the course of the marriage;
b)Whether any alleged renovations have increased the pool of assets and, if so, by how much;
c)Nature and extent of any alleged medical conditions suffered by husband, and any effect same may have on his capacity to derive income past/future;
d)Nature and extent of any contributions of homemaker during the course of the marriage;
e)Nature and extent of any financial contributions by the husband during the course of the marriage;
f)Ultimate % property division in light of the contributions and the length of the marriage.

Short History

The husband and wife are 57 and 58 years of age, respectively. They started living together in October 1974, were married in July 1975 and separated in either January 2004 or January 2005. The parties’ divorce was granted by the Federal Magistrates Court and became final on 1 September 2008. As at the date of the hearing they continue to live in the former matrimonial home.

Children

The parties have three adult children:
J Connorwho was born in May 1985 and as at the date of the hearing is 23 years of age;
L Connor who was born in January 1987 and as at the date of the hearing is 22 years of age; and
M Connor who was born in March 1989 and as at the date of the hearing was 19 years of age.

Background Facts

The wife was born in Asia and moved to London in December 1969 to study nursing. She qualified as a State Registered Nurse in January 1974 and as a State Central Midwife in 1974.
The parties met in the United Kingdom in October 1974.
Starting in October 1974 the husband was employed as an “Assistant under Training” with M Partners in the UK for about 12 months. In that job he was earning about half the wife’s income.
In June 1975 the wife bought a houseboat for £3,200 for the parties to live in. The wife had £1,800 in savings and about £200 in holiday pay. She paid £1,500 from her savings towards the houseboat and borrowed £2,500 from the Barclays Bank. The husband’s father acted as guarantor.
The parties were married in the United Kingdom in July 1975.
At that time the husband was studying. Up to that time the wife had been working as a Staff Nurse at a Hospital. Of the wife’s saving of about £2,000, the wife thinks she may have had something left after she bought the houseboat and paid for the honeymoon. The wife was earning £2,500 gross per year at the time of marriage.
Following a 2 week honeymoon in Greece the parties moved to Y in the UK.
In August 1975 the wife worked as the Charge Sister at a Hospital in Y. The husband continued his studies.
In 1976 the husband studied for a Bachelor of Science Degree. He graduated in June 1977. He had part-time employment with S Firm from October 1976 to July 1977. The wife supported the husband while he was at university and typed at least one university assignment for him. In July 1977 the parties left for travels in Europe for 4 months.
The parties sold the houseboat for £3,400.
In January 1978 the parties bought a flat in Y, UK, for £15,800. They rented the property to the husband’s brothers who caused extensive damage to the property. They stained the carpet, kept motor cycle parts in the property and effected irregular access to the attic. From January 1978 to March 1978 the husband worked part-time as a Sales Representative. He left that job so as to look for a job in London.
From April 1978 to about May 1979 the husband worked part-time for his father’s business, B Partners UK. The husband was not paid for that work.
The wife worked at R in the UK, working up to 60 hours a week.
On 1 June 1979 the parties left for 3 months of travel in Europe.
From August 1979 to August 1980 the husband worked for several firms in the United Kingdom, completing one contract and then moving to the next job.
From 1979 the wife worked through C Nurses Agency. She worked 40-50 hours a week. From January to March 1980 she worked for P Nurses Agency, again 40-50 hours a week. From March to June 1980 she worked with S Company as an Occupational Nurse 40 hours a week. From June – October the wife worked at Y House as a Staff Nurse for 50 hours a week.
On 12^th October 1980 the parties left the UK for Australia.
On October 20^th the parties bought a VW Kombi motor vehicle for $4,950 to drive from Perth to Sydney.
In Sydney the parties stayed with friends. In December 1980 they moved into a flat at F.
From 16 December 1980 the husband worked for D Firm for 2 weeks at $10/Hour. On 12 January 1981 he started with J Firm.
On 3^rd February 1981 the wife started work at K Private Hospital on a full-time basis.
On 28^th March 1981 the parties bought a plot of land at E for $38,000. They borrowed the total purchase price from CAGA finance company.
The husband left J Firm on 15^th January 1982. The husband had agents looking for jobs for him for the next 6 months. He had some flying lessons in this period which were paid for from savings.
In June – July 1982 the husband did Agency work with V Company for 7 weeks.
In August 1982 the wife left K Private Hospital and the parties left Australia to return to the United Kingdom.
On 10^th November 1982 the wife started at C Nurses Agency working full-time to support the parties and pay for the mortgage on the E land. In November 1982 the husband started with N Firm as a contract employee. He left that position in February 1983.
In February 1983 the husband took 6 months off to renovate the maisonette at Y U.K. He took paid employment with H Ltd from 7^th September to December 1983. The parties made arrangements to return to Australia.
On 16^th January 1984 the parties sold the Y property. The husband says it was sold for £31,000.
On 10^th February 1984 the parties returned to Sydney via Hawaii. In March they rented a flat.
On 4^th April 1984 the wife rejoined K Private Hospital on a full-time basis. From April to September 1984 the husband worked for O Firm as a contract employee.
On 17^thSeptember 1984 the husband started at G Firm.
On 20^th December 1984 the parties put in plans to build on the land in E. In 1985 they borrowed $70,000 from the Advance Bank to build a house on the E property. That loan was also used to discharge the existing loan secured on the property.
J Connor was born in May 1985.
In November 1985 the wife returned to paid employment. She worked Friday, Saturday and Sunday nights at W Nursing Home.
L Connor was born in January 1987. The wife returned to paid employment on 13 July 1987. She worked 8¹/₂ hour shifts on each of Friday, Saturday and Sunday nights until 8 August 1988.
The husband’s parents stayed with the parties from February – June 1987.
The husband left G Firm in October 1988. The wife concedes that from 1985 to 18 December 1990 the husband was employed for various firms with some breaks as he waited for the next appointment.
M Connor was born in March 1989. In April 1989 the wife returned to night shifts on each of Friday, Saturday and Sunday nights at H Hospital.
From December 1989 to January 1991 the husband worked for I Firm.
On 18^th December 1990 the husband told the wife he was taking a year off and that she should go back to work full-time.
In late 1990 – early 1991 the husband was earning an average of about $1,700 per week[1]. Apart from contract work in August / September 1991, the husband has not had paid employment since that time.
[1] During cross-examination the husband was taken through deposits into his bank account representing payments of income on a weekly or fortnightly basis in the period 3 November 1990 to 3 January 1991 inclusive. He could not account for the size of the amount deposited on 20 December 1990 of $2,527. I have added up the amounts and divided the total by the number of weeks involved.
The husband told Professor LD that he believed he may have been made a scapegoat for unsatisfactory work even though it was not his own fault. It is his evidence in these proceedings that the parties agreed he would commence renovations, first in relation to the E property. He was asked in cross-examination if he left I Firm on good terms and he said he did. He agreed that he formed the view that I Firm may have blacklisted him but he was not told that by them or anyone else and he did not ask them. It was put to the husband that he had lost enthusiasm for paid employment and he rejected that and said that he did want to go back to (paid) work. He agreed that he did not approach any of the many firms he had previously worked for, in relation to future employment.
The husband returned to the United Kingdom in May/June of 1991 to visit his sick father.
The family had Centrelink benefits for 3-4 weeks.
In July 1991 the wife started at FW Nursing Home, working Friday, Saturday and Sunday nights for 30 hours of shift work. She also did Agency work on other nights.
On 25^th May 1992 the wife commenced at MA Private Hospital where she still works.
In July 1992 the wife left the FW Nursing Home and went free-lance with A Agency working nights. From that time to 2001 the wife worked continuously 6 nights a week. In addition she worked a 7^th night on occasions.
In June 1993 the parties sold E property for $284,000. In July they bought W property for $302,000. They borrowed $115,000.
In February 1994 they parties extended the mortgage by another $50,000. The money was used to erect new fences and also for work on the house.
The wife continued in her full-time position and took over-time.
From March to June 1995 the husband’s mother stayed with the parties. The wife was working 50-60 hours a week to support the family.
In May/June 1997 a leaking roof cost $12,000 to repair. The wife worked practically every night to pay off the resultant debt. She was admitted to H Hospital for 3 nights for exhaustion and dehydration.
In August 1998 the wife joined S Private Hospital on a permanent part-time basis. She continued to work at MA Private Hospital. Her total hours were 50 – 65 hours/week. L’s orthodontic work cost $7000.
In January 1999 the parties bought a hail damaged Ford Fairlane for $32,000 and had the roof repaired for $3,600. There was a further loan to pay off.
In 2001 the wife found working practically every night of the week, was too much. She reduced her time to Friday and Saturday nights only at S Hospital. She also helped out when there were shortages of staff. From March 2001 to date the wife has worked permanent part-time 20 hours a week made up of 10 hour shifts at S Hospital and 8 ½ hour shifts at MA Hospital. On some occasions she worked 7 nights when S Hospital asked her to help out. She took 4 weeks holiday a year, during school holidays.
The husband bought an Aston Martin motor vehicle for $26,000.
In January 2002 the parties retained a plasterer to work on the lounge, costing approximately $3,000.00.
In March 2002 the husband bought a Holden vehicle for $41,250. As a result the parties’ personal debt was over $130,000. The wife asked the husband to sell the car but he refused.
In March and April 2002 the parties’ credit card bill for the month was over $13,000. The wife asked the husband to return to work. He did not.
In October 2002 L went on a school excursion to Turkey at a cost of $4,000.
L moved out of home for a year.
In February 2003 the husband sold the Aston Martin for $28,000.
On 10^th March 2003 J started at TAFE. The wife paid for his fees and books and other expenses.
On 12^th March 2003 the husband bought a motor bike for $2,500.
In April/May 2003 the husband went for an interview for a job as a Financial Planner. He did not take the job, saying it would be too stressful.
In 2003 the husband started locking himself in the office at the W property. He spent a lot of time on the computer.
In October / November 2003 the husband’s friend asked him to start up a business together. The husband declined his offer.
The wife says that the parties separated on 15^th January 2004.
On 2^nd May 2004 the husband’s mother sent him $4,710.60. The husband used the money to pay off debt. The husband applied for a job as a Postman. Despite encouragement and a request from the wife to find a job, he did not pursue that position.
L finished High School.
The parties sold the Holden for $27,000.
In December 2004 the husband told the wife that he was unwell. He did not specify the illness.
The husband contends that the parties separated in January 2005.
During 2005 the wife was working 45½ hours a week. In November she was diagnosed with a gist tumour (stomach tumour).
In October/November 2005 the husband travelled to Vietnam for one month to see his girlfriend, Ms MC. The husband says that his mother gave him money for one of his trips to Vietnam.
In October 2005 J’s girlfriend came to stay with the family.
The husband asked the wife to invest in a unit in Manly. She did not pursue this as the children warned her not to do so.
On 13^th January 2006 the wife was operated on at the W Hospital. The operation was complicated with a wound infection, extending her hospital stay.
In February 2006 L started at University. The wife paid for her registration fees, books, membership and other expenses.
On 7^th March 2006 the wife saw a solicitor regarding property settlement. The parties’ personal debt stood at $44,000 and the mortgage was over $131,000. Total joint debt was approximately $175,000.
In 2006 M was 17 years old and doing her HSC. The parties decided not to disrupt M’s final year and agreed to sell the house after her exams.
In June 2006 L had her wisdom teeth extracted at a cost of $2,200.
On 2^nd May 2006 the husband asked the wife to write to Centrelink to say that she was no longer supporting him.
On 21^st May 2006 the husband received Centrelink payments, backdated to 19 April 2006 at the rate of $430 fortnightly. The husband did not pay any monies towards the mortgage/ household expenses at all.
In March, May and August 2006 the wife asked the husband to leave the home and he did not do so.
In August 2006, J and his girlfriend moved. The wife helped J to set up a flat and pay bond money and initial rent and agreed to pay for his internet connection ($62 a month) while he is at University.
In November/December the husband went to Vietnam for one month to see his girlfriend, Ms MC.

M finished High School and in 2007 took a gap year and worked. She travelled overseas at the end of the year. The wife had work done to the main bedroom and en suite to prepare the property for sale. She paid $1,500 and had the laundry painted for $600. The husband did this work in return for being allowed to stay on in the house.
At one point the husband offered to move out if the wife advanced him $15,000 to establish rented premises. With hindsight it may have been best for all concerned if the wife had taken up that offer. The environment of the W household after separation must have been unpleasant.
In December 2007 the husband commenced proceedings in this court.
In March / April 2008 the wife paid to have a blocked toilet repaired and to install a hot water tank in the kitchen at a cost of $1,650.
In April 2006 the wife paid for J’s wisdom teeth operation. She also helped J with the purchase of a suit for a job interview at a cost of $600.
From 24 June 2008 to date and continuing the wife works full-time night shift as a Registered Nurse. She supports the parties’ adult children while they are studying. She pays all household expenses and the mortgage payments with no financial contribution from the husband.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties and their adult children. There are relevant factual disputes and therefore credit findings are appropriate.
The husband was a very deliberate witness. He often asked for questions to be repeated. The husband suffered in silence during the indignity of demonstrating the extent of his sweatiness in the witness box and advice from learned counsel for the wife about wearing singlets. When asked he made some concessions in favour of the wife, although there is no real acknowledgement by him of what was a very impressive contribution by her over many years. The husband appeared to make every effort to give truthful evidence but his recollection is coloured by his perspective on various events and periods. For example, his version of events is quite different to the version of events contained in the wife’s case, much of which was unchallenged.
The wife made virtually no concessions in favour of the husband. Given her case that is understandable. Her formal position is that the overwhelming proportion of contributions was made by her. As an example of her determination to give the husband no credit, the wife initially refused to concede that the husband must have attended to J at night for feeding and changes of nappies, when she returned to paid employment at night, when J was 6 months of age. Her first response was that the child was asleep at night. Similar concessions in relation to the other children were only grudgingly given after the husband’s counsel pressed the wife in cross-examination. The wife says that a typical week when the children were at Primary School would have her returning home from the hospital at 7.20 am. Among other things she says “I would … prepare the breakfast”. Although different to her affidavit, L, who was called to give evidence in these proceedings on behalf of the wife, remembers that aspect of the later years of Primary School like this:
“We would usually get our own breakfast, sometimes she would make it, sometimes he would as well though, but usually we would make it ourselves.”
Failure to make obvious concessions is very distracting and suggests that aspects of the wife’s evidence are more focussed on advocacy than an accurate reflection on the past.
Sadly, not only did all three children of the marriage swear affidavits in their mother’s case but each of them was called to give oral evidence in support of the wife’s case in reply. Little can be said about the credit of J, L and M Connor. Although the thrust of much of their evidence is adverse to his case, on their father’s instructions, they were not cross-examined by his counsel. Interestingly, their evidence in support of a case in reply was different in some aspects to their affidavit evidence. For example from L’s affidavit there was
“My father has never helped in food preparation. He did not make our lunches for school, nor did he ever cook dinners. My mother would make us breakfast but more often than not it would be toast or cereal organised by my mother, When I was old enough in high school, I prepared my own breakfast.”
As I have referred to above, in her oral evidence L was asked about the later years of Primary School and she said words to the effect:
“We would usually get our own breakfast; sometimes she would make it; sometimes he would as well, though; but usually we would make it ourselves.”
I assume “she” and “he” are references to the wife and husband. Thus from L, we go from ‘the husband has never helped in food preparation’ to ‘sometimes he made our breakfast’.
L was asked about getting to friends’ places in the 1990’s and 2000’s. L was born in 1987 so that period covers most of her childhood. In her affidavit she said “my mother and father both gave us lifts to friends’ houses and parties”. When asked about that in the witness box she responded to the effect: “I usually got picked up; friends’ parents would drop me off or pick me up”.
In L’s affidavit there is no mention of clothes shopping. In her oral evidence she said that both parents took her to buy clothes.
The evidence of the adult children was not entirely consistent. For example, unlike L, J and M recall that it was their mother who made breakfast in the morning. There was no reference to them getting their own breakfast or to the husband doing so.
The evidence of the children was not challenged in cross-examination. That is not the end of the enquiry. It was apparent when they gave oral evidence that much of their recollection, so confidently expressed in written form, was more a matter of presumption or deduction. Thus from M there was a bit of “I would have…” or “Mum would have …”. That is the benefit of oral evidence as opposed to the careful settling of written evidence. The adult children have been placed in an uncomfortable position (albeit perhaps not as uncomfortable as their time in the W household). They seem impressive and attractive individuals. In less adversarial circumstances one might venture that fact to be a credit to them and their parents. In this environment I gather the latter concession would not be made. I accept that they have tried to give truthful evidence but am left with the feeling that, at the margins at least, they are also advocates in their mother’s case.

Submissions

The written submission on behalf of the husband is:
(E)Current financial circumstances of the parties

ASSET

OWNERSHIP

HUSBAND’S VALUE

WIFE’S VALUE

W property

Joint

$1,000,000

$950,000

Burial plot

Husband

$4,000

$3,500

Motor vehicle

Husband

$5,000

$5,000

IAG shares

324 @ $3.46

Husband

$1,121

Commonwealth Bank

Wife

$43,417

HESTA Superannuation entitlement

Wife

$10,131

Colonial First Choice Superannuation entitlement

Wife

$99,747

LIABILITY

OWNERSHIP

HUSBAND’S VALUE

WIFE’S VALUE

Mortgage over W property

Joint

$115,000

$115,000

Note:
1.Each party has credit card debts and the wife has a debt for tax outstanding. These are post separation debts and have not been included.
2.Each party will have legal fees.
3.The Husband does not seek to include furniture and personalty.

SUMMARY OF ARGUMENT

A. CONTRIBUTION ENTITLEMENT

1. The husband worked from the time of co-habitation until September 1991.
2.The Husband acknowledges that the Wife worked from the time of co-habitation and to the present time.
3.The Husband was responsible for the renovation and improvement of the houseboat and the [UK] property.
4.The Husband designed the [E] house, drew the plans and supervised the construction.
5.The husband renovated the [W] property.
6.The Husband cared for and supervised the children while the Wife worked at night and when she slept during the day.

7. The Husband says his contributions are equal to those of the Wife.
B.SECTION 75(2) ADJUSTMENT

1.         The Husband is in receipt of a disability pension.
2.         The Husband has little or no capacity for employment
3.         The Husband has no superannuation.
4.         The Wife has a superior earning capacity.
5.         There should be an adjustment of 5% in favour of the Husband.

In oral submissions for the husband it is submitted that the wife’s case is untenable. It is submitted that the husband made a proper contribution in various ways. As part of the parties’ arrangements he was focussed on renovations rather than income from 1991. It is submitted that the husband was largely unchallenged in relation to what he did and the current value compared to the value ascribed for rating purposes demonstrates that he improved the property.
The husband argues for an equal division. He agrees to the wife’s preference for his settlement to be in the form of non-superannuation assets. The husband argues for 50% on contribution and no adjustment under section 75(2). However, if the court finds that the wife is ahead on contribution, the husband argues for an adjustment under section 75(2) in his favour, of the same value.
It is submitted on behalf of the wife that
i.The Husband’s initial contributions were minimal, whereas the Wife’s were significant;
ii.The Wife supported the Husband in the early years of marriage while he completed an Engineering degree;
iii.Since 1991, the Wife has wholly and entirely supported the Husband and the family through her nursing job;
iv.The Husband has not worked since 1991, although he has been fit, healthy, and capable of earning a substantial income;
v.The Husband’s choice not to work since 1991 was unilateral;
vi.Since 1993, the Husband has spent an unjustifiably long time allegedly ‘renovating’ the [W] house when he could have been working & earning an income, getting tradesmen to do the work in a fraction of the time or doing the work himself on week ends;
vii.Some of the claimed renovations by the Husband (UK) were due to the Husband’s brothers/friends ‘trashing’ their unit;

The claimed renovations in [W] were variously poorly undertaken, uneconomic, unnecessary, unfinished, exaggerated, and did little to increase the value of the pool of assets;
ix.For most of the last 10+ years, the Husband has contributed very little as a home-maker, with his relationship with the children degenerating such that none of the children any longer have a close relationship with the Husband;
x.The Wife has been the major home maker and major financial contributor during the marriage;
xi.The Husband did not, nor does not, suffer any significant health problem so as to impair his capacity to work and earn a significant income;
xii.The Husband has disengaged from the family over many years by shutting himself off in a study, and accessing the internet. To this end, he has met and visited a girlfriend several times overseas, such trips paid for by the Wife;
The Wife is aged 58 and has a long career of nursing. She is reaching the age where she will need to retire and accordingly will require premises that will allow her a reasonable lifestyle.
1.PROPOSED DIVISION.
The equitable division in light of the above is for the property to be split:
i.S.79: W75/H25;
ii.S. 75: W+5%.
Total W80%/H20%.

In oral submissions the wife’s counsel conceded that the orders sought by the wife do not match the submissions in her case. For that reason a recast minute of orders was produced and provided to my chambers after the hearing had concluded to give effect to the 80:20 division of all assets (including superannuation).
The wife’s counsel described the assessment of contributions in two stages. From marriage to 1991 it is submitted that both parties made contributions of various types but the wife’s were greater. The wife brought in the only initial contribution, she supported the husband while he studied and while he earned no income during other periods. The husband should have no credit for renovating the maisonette over 6 months in 1983 because his brothers were renting the property and trashed it.
It is submitted that from 1991 the wife made the overwhelming contribution. The submission for the wife is that hers were special contributions in the sense of Ferraro.
The argument for the wife is that the husband abandoned paid employment, made a minor contribution to the children, no homemaker contribution and his renovations efforts were poor, resulted in little or no improvement or conservation and were massively protracted. On the other hand the wife worked 6 and 7 nights a week of shift work and made the main parenting and homemaker contribution.
It is submitted that the wife should be credited with a very significant contribution after separation for reduction of debt and increase in superannuation:
1.   Viridian Line of Credit : Post sep-Payments
At:           1/1/04  $74762
At:           D o T  -         .
$74762
2.   Super:      a.        HIP
AT:  30/6/04  $16609
AT:  DoT  +         $    -* .
b.        HESTA
AT:  30/6/04  $46339
AT:  DoT  +         $14806
c.        Colonial 1^st State
At:           30/6/04  $   -
At:           DoT               -  $98887.
Net  $50745
3.   Economiser Home Loan:         Post Sep payments
At:            1/1/04  $131384.
At:   DoT  $115000.
$ 16384
4.   Net Bank: Post sep savings.
Opened 17/3/08
AT:   DoT  $ 41595.
5.   Treatment:
Unadjusted Pot of:  $1052848
Reduce by:     Net Bank  $41595
Viridian Line of Credit        $74762
Super  $50745
Home Loan  $16384.
Total  183486         -          $183486.
Adjusted Pot  $869362
6.     20% on unadjusted pot =  $210570 or 24.2% adjusted pot.
It is argued that Section 75(2) requires a 5% adjustment in favour of the wife because she is 58 years old and nearing retirement.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [2]
[2] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties at the date of the hearing. Although learned counsel for the wife had a argument about certain post separation assets being omitted, the pool is agreed as follows:

Assets

Value

W property – joint

$1,000,000

Husband’s burial plot

$4,000

Husband’s motor vehicle

$5,000

Husband’s IAG shares

324 @ $3.46

$1,128

Husband’s NIB shares 3,200

$2,432

Wife’s Commonwealth Bank account

$41,595

Wife’s Superannuation (HESTA and Colonial First Choice Superannuation)

$113,693

Total

$1,167,848.00

Liabilities:

I find that the relevant liability of the parties as at the date of the hearing is as follows:

Liabilities

Amount

Mortgage on the Wproperty

$115,000

$115,000.00

The net assets have a value of $1,052,848 ($1,167,848 – $115,000).

Financial Resources

There are no financial resources of the parties that are not included in the table of assets.

Contributions

The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[3]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[4].

A separate pool for superannuation
[3] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[4] In the Marriage of Shewring (1987) l2 Fam LR 139

As to whether the Court should assess contributions asset by asset or globally, the authorities have it that the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court opined that it is preferable for contributions to superannuation to be assessed separately from those made to other assets. However the Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the parties have adopted a global approach to the assessment of contributions. On that basis, I too will employ a global approach.

Section 79(4)(a) Contributions

The wife had £2,000 at the commencement of the marriage.
Each of the parties had paid employment during the marriage. There is no reconciliation of their incomes in the evidence but it is clear that the wife’s contribution from paid employment was more extensive and of greater monetary value than that of the husband. That arises not only because he ceased paid employment altogether in 1991 but because the wife’s salary was greater than his at the commencement of the marriage and she supported him while he completed his studies; while he worked for his father for more than a year, without pay; and during the many periods when he was without paid employment (periods when he was between jobs or otherwise engaged) prior to 1991. In the years since separation the wife has continued to support the household and to make contributions to superannuation and savings. In the 12 months since February 2008 she saved over $41,000. In supporting the household since separation, the wife has continued her financial support of the husband.
There is reference in the wife’s case to the purchase of the houseboat and to the payment of family expenses over the years, such as $12,000 to repair a roof and orthodontist fees for the children. I accept those contributions were made but having given credit for the wife bringing to the marriage her savings and her income from paid employment, to count those specific contributions would represent double counting the wife’s efforts.

The financial contributions of the wife were significantly greater than those of the husband.

Section 79(4)(b) contributions

Non-financial contributions were made by the parties. The husband made improvements to the houseboat, renovated the UK maisonette in 1983 and undertook landscaping, maintenance and improvements to the E and W properties. The husband has attached a schedule of the work done at the W property from 1993 to date in annexure K to his affidavit. At the commencement of annexure K he summarises that work as follows:
Summary
1993Removed island cupboards and benchtop in kitchen. Moved cook top to a new location. New oven and cook top.
1994 Drew plans for new boundary fence.
Demolished boundary brick post and end of garden retaining wall. Rebuilt end of wall to match position of proposed fence.
Supervised fence construction. Made and fitted 2 gates in fence.
Renovated bedrooms 2 and 3 from August to December.
1995   Partially renovated office in February.
Unable to work on house from March to June because a guest was staying. Worked on side garden from September to December. Removed brick and concrete septic tank and part of concrete terrace. Dug trench for new telephone cable.
1996Finished work on side garden and paving from February to April. Renovated laundry room toilet.
1997 Removed chimneystack and filled hole with new joists and boards and asphalt. Took out pipes penetrating roof and made good holes in asphalt.
Fitted new joist in kitchen.
Made new airing cupboard.
Researched type of roof covering and arranged quotes for roof.
New roof covering
1998 Took out fireplace and end wall in lounge.
Renovated bedroom hallway.
Redecorated Bedrooms 2 and 3.
Renovated bedroom 1.
1999 Renovated kitchen ceiling.
Renovated office from May to June.
(Organised repair of hail-damaged car in June.)
2000 Renovated bathroom from February to December.
Dug trench for new outside tap.
2001 Completed bathroom renovation from February to March.
Made new entry hail for the house from May to December.
Renovated lounge.
2002   Finished work on new entry hall.
Finished lounge renovation.
Unable to work on house from March to June because a guest was staying.
2003   Renovated airing cupboard.
2006 Fitted new wiring in garage.
2007 Repaired garage door.
Partially renovated laundry room.
Partially renovated en-suite.
2008 Painted most of rear house wall.
During cross-examination the husband was taken to the detail of two years – 1994 and 1997. The husband was not successfully challenged in relation to his evidence about the tasks described in the schedule. However, he conceded that those tasks occupied much less than half the year in each case and, had they been attended to consistently (8 hours day), then that work would have occupied an even smaller fraction of each year. The thrust of the husband’s answer to the proposition that he was far from fully engaged in renovation work was to the effect that: the descriptions are only a summary of what was done; he arranged his renovations work around school hours and avoided disturbing the children; he did other things in addition to that work, such as attending to parenting matters. The work on the W property spans 16 years.
I am satisfied that the husband substantially undertook the work summarised above and detailed in annexure K to his affidavit. I have carefully read the descriptions of work in annexure K. There was little, if any, challenge to the husband’s evidence on this issue. I accept the wife’s evidence that she assisted on occasions, including collecting equipment and materials from the hardware store. Nevertheless the husband did the overwhelming proportion of this work.
It was put to the husband in cross-examination that some of his work was inadequately performed and that evidence of wear and tear at the property, such as deteriorating barge boards and a vanity unit in a bathroom which lacks doors, establish that he has not adequately maintained the property. I was satisfied with the husband’s answers about those matters. He said that the barge boards were not his work and their repair, as with the repair of the vanity, is beyond the scope of his various handyman skills.
The wife seeks a finding on the question of whether the husband’s work on W property, increased the value of the property and so the pool of assets and, if so, by how much. There is no probative evidence on this issue. There was an attempt made on behalf of the husband to draw a conclusion on this point from the unimproved capital value fixed for the property for the purposes of rates. If evidence is sought of this nature then an expert is required and there was no such evidence before me. That being said, contributions under this provision are not limited to the improvement of property.
The husband made a very significant contribution of a non-financial kind. Nevertheless, from 1991 to 2008, he was far from fully occupied with that work.

Section 79(4)(c) contributions

There are three children of the marriage. It is likely that the wife was their primary care giver. That is a fair reflection of the evidence of the parties’ children. It makes sense of the fact that the parties arranged for the wife to take periods off paid employment immediately following each birth. She had 6 months leave after the births of J and L and one month after M’s birth.
When the children came along and the parties were both in paid employment, the parties agreed that the wife would work at night and that the husband would work in the day. On a typical school day the wife would return from work after 7.00 am get the children off to school and only then get some sleep. She walked the children to and from Primary School each day. The wife gives unchallenged evidence about getting little sleep on many occasions.
Despite the wife’s evidence and that of the children, it must be the case that the husband made a significant parenting contribution. He must have attended to the children at night when they were very young and their mother was at work. It is conceded that there were joint family outings and holidays and joint shopping expeditions. The husband helped in the mornings, occasionally getting breakfast for the children. The husband assisted in teaching the children to drive and he transported them on many occasions.
Reflecting other aspects of the life of the Connor family, the husband intervened on behalf of the children at their schools but did so almost exclusively by correspondence. If there was a need to attend at the school, the wife usually made that intervention.
It is conceded by the husband that the wife undertook nearly all of the household chores.
As between the parties, the husband did most of the lawn mowing and gardening.
The children are firmly in their mother’s camp in relation to these proceedings. That may simply be a reflection of their current thinking rather than a considered assessment of the respective parenting and homemaker roles undertaken by their parents. On the other hand it may be as the husband says that he generally has and has had a good relationship with the children. None of that may matter in any event. It must be possible to make a parenting contribution without necessarily having a good relationship with all of the children being parented.
I am satisfied that the wife was the primary care giver of the children and the main homemaker. That is not to say that the husband was not an interested and loving father but that finding reflects the division of labour made between the parties.

Conclusion on Contribution

This was a very long marriage. The wife contends that the contributions were made in the proportions 3:1 in her favour and the husband argues that contributions were equal.
The submission for the wife is that hers were special contributions.
In JEL and DDF [2000] FamCA 1353 the Full Court reviewed the authorities on the issue of special contributions, including Ferraro (1993) FLC 92-335; McLay v McLay (1996) FLC 92-66; and Stay v Stay (1997) FLC 92-751 and said:
151.    Although a trial Judge may find guidance in previous decisions, there is no requirement, nor could there be, that he or she fetter their wide discretion by being bound by results of cases that depended on their own facts. In the course of her judgment, her Honour makes it clear that she considered other decisions to derive what guidance she could.
152.    It seems to us that the following general principles can be said to arise from the cases referred to in these reasons, namely:
(a)      There is no presumption of equality of contribution or “partnership”.
(b)There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c)Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d)In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e)The Court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that that phrase was understood by the Full Court in Maclay (supra).
(f)The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain.
(g)Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h)It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i)In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.
The matter of special factors or special contributions is not without debate. Repeated references by Full Courts to a ‘doctrine’ make it clear that there can be a situation where the assessment of contributions involves the need for a special calculation in certain cases. However, there have been rumblings eg. In the Marriage of Figgins (2002) 29 Fam LR 544; Downey and Downey [2005] FamCA 1462 O’Ryan J, that suggest the doctrine bears re-examination. Given the repeated injunction of the High Court over the life of the Family Law Act for courts to avoid establishing rules to confine or render formulaic an exercise of discretion, there may be scope in the future to re-absorb this doctrine into the task set by the legislation, the assessment of contributions.
In the case before me there is a modest pool of assets. There are neither tens of millions of dollars nor a significant business structure. Unfortunately, the case law on the doctrine, while repeatedly asserting that the concept must relate to all types of contributions, almost exclusively arises in the context of financial contributions and then only in the context of a matrimonial fund of many millions of dollars. There is a reference in Ferraro to cases where the parenting of handicapped children is a feature. The judgment does not identify the particular case or cases. The problem comes of course in the comparative assessment of special financial and special parenting contributions. It is easier to measure an increase in wealth than it is, for example, to disaggregate from other factors, increments in the development of children and then to trace that outcome to the parenting of one parent.
In JEL and DDF the court was dealing with an 18 year marriage and net assets of at least $36,709,511 which at first instance were divided 65% to the husband and 35 % to the wife. The Full Court upheld the appeal, found that the legitimate range of discretion on the wife’s contributions was 25% - 30% and re-exercised the discretion to award the wife 27.5% on contribution and $200,000 under section 75(2). The Trial Judge had found the wife’s contributions, for the most part, to be as homemaker and parent. Her Honour found that the husband’s contributions as a parent were equal to those of the wife. The wife’s capacity to contribute was impaired by illness. At first instance her Honour found:
“There is no doubt that the wife’s health interfered with her capacity to perform her role as homemaker and parent. After 1987, her ability to manage the household, care for the children, and contribute to the husband’s business decisions sadly diminished from an active and involved person to someone debilitated by her illness. I find that based on the medical evidence from late 1987 the wife’s contribution as homemaker and parent was significantly affected by her illness.’
Whatever the doctrine means it does not help with the case before me. The wife does not assert that she built up a remarkable pool of assets. Her case is that she did double duty and the husband did not enough. It is the wife’s case that she made a greater contribution as a parent, performed virtually all of the homemaker tasks and made the greater financial contribution throughout this long marriage. This she seeks to contrast with a lesser financial and parenting contribution by the husband and a non-financial contribution that was made over an extended period but was neither efficient nor effective.
Marriages are often partnerships of equals, where the parties settled an arrangement for undertaking the various marriage tasks, including as breadwinner, parent and homemaker. That is not to say that equality of contribution is a starting point. Quite the contrary. On the other hand, in long marriages adjustments for something that happen over part of the marriage can mean that proper recognition is not given to valuable contributions during the balance of the marriage. There is reference in the case law to contributions in the “normal range”.
In McLay v McLay (1996) 20 Fam LR 239; FLC 92-66 the Full Court said:
The reference to "normal range" in Ferraro and in her Honour's judgment is not a return to a presumption of equality as a starting point or any other presumption or starting point but is a practical recognition of the circumstance that in many marriages each party contributes in ways which might be described as the normal way in our society and that in any qualitative evaluation of those matters the likely outcome is one of equality. This is repeatedly recognised in the day to day experience of this Court over many years in dealing with a very large number of s.79 cases. In many cases any assessment of the facts readily makes it clear that an outcome of equality within pars.(a) to (c) is most likely and that a lengthy trial in which those facts are examined in detail will produce no different result. It will only mean significant extra costs to the parties and an unproductive use of the time of the Court.
Taken together the evidence before me supports a finding that the wife made a greater contribution than the husband. There were periods, when the husband’s work involved arduous work over long hours. For example from December 1989 to January 1991 he worked without a holiday, often starting at 7.00 or 8.00 am and finishing at 8.00 or 9.00 pm. In that period the wife worked on Friday, Saturday and Sunday nights, for something like 8¹/₂ hours a shift and so during those evenings the husband had the care of three children under 6 years of age. It may be that in those periods the husband made a greater contribution than the wife.
Irrespective of any differential in income, for the periods of the first half of the marriage when both parties worked full-time they would be found to have contributed equally. However, the husband was out of paid employment for substantial periods and in part-time employment for other periods, particularly while he studied and renovated the houseboat and maisonette.
In the second half of the marriage the husband had no paid employment. The husband does not contend that he had no earning capacity. There were no health issues until about two years before separation. The husband told Professor LD that he noted the onset of the condition later identified as Hyperhidrosis in November 2002. The husband concedes that he has an earning capacity today and that he has not sought to exercise it since separation. Meanwhile the wife has supported the household, including providing some support to the husband.
Since separation the wife has reduced the parties’ debt, increased their savings and increased her superannuation. In total she has increased their wealth over that period by about $180,000. That was done while providing virtually all of the financial support to the household.
The wife was the primary care giver for the children and undertook the overwhelming proportion of homemaker tasks. The husband performed some parenting tasks and made non-financial contributions at three properties and to a houseboat. The wife seeks a finding that her contributions were three time those of the husband. The husband argues that contributions were equal or if not, only a small percentage apart.
In my view difference between the parties is significant and notwithstanding the period over which contributions of various types were made, should be reflected in a substantial differential finding. I find that the wife’s contributions were 60% compared to 40% by the husband. That would mean a difference between them in the context of this case, of about $200,000.

The other matters in Section 79

Dealing with the matters identified in the legislation:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no evidence about this.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (f), (j) and (m).

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

First, as to the age and state of health of each of the parties. The husband is 57 and the wife is 58.
The husband suffers from Hyperhidrosis. The single expert is Professor LD who is Professor of Surgery at the University of Western Sydney. The husband told Professor LD that he noted the onset of the condition in November 2002. The condition results in excessive sweating on the front and back of the trunk, arm pits and upper limbs. The husband consulted a GP about the symptoms in 2006 and was referred to a specialist. The specialist Dr JH advised beta blockers but the husband decided not to take them as it would be for life and they could lower his blood pressure. The husband reported sleep walking for about 6 years and depression. Medical certificates have been given on the husband’s behalf to Centrelink. The Centrelink benefit the husband receives has been described by reference to ‘incapacity’.

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

The husband receives $232 per week, made up of a Newstart Allowance of $227.65 per week ($440.67 per fortnight Newstart Allowance, $8.63 per fortnight GST Allowance and $6.00 per fortnight Pharmaceutical Allowance) and $4.00 per week in dividends on shares. He lives with the wife (and with L and M). The wife pays $250 per week for his benefit, in the form of utilities, motor vehicle running expenses and mortgage instalments. The husband’s expenditure is as follows:

Expenditure

Amount

Permanent disability insurance – ACE Insurance

$2.00

Health insurance – NIB

$30.00

Visa card payments – Commonwealth Bank

$6.00

All other expenditure

$180.00

Total

$218.00

There is an issue about the extent of the husband’s earning capacity. The husband has been told that his Newstart Allowance is styled “Newstart Allowance Incapacitated”. In a letter dated 2 March 2009 the husband’s solicitor advised, among other things, that:
“[The husband] attended Centrelink on 26^th February, 2009 and was advised his Pension was styled “New Start Allowance Incapacitated”. The office indicated they were not able to give [the husband] an independent letter confirming that status because all issued letters from the office had to be “computer generated”.
There is no evidence about those matters.
The husband conceded in cross-examination that he has the physical capacity for a low skilled job. He agreed that he could engage in shelf packing, handyman work, gardening, some types of computer work, web design, night work, security work, and perhaps delivery work. In the latter regard he said that he sweats when he drives. The husband told Professor LD that he believes he would be capable of carrying out jobs where there is little or no human interaction. The examples he gave were Surveying and things that he could do on his own, particularly at home. There is no evidence about the rates of pay available for those various types of job. Thus the husband has an earning capacity that he is not currently exercising.
The wife’s income is $2,269 per week made up her wages from MA Private hospital and S Private Hospital. The wife lives with the husband and parties’ children, L and M. I have set out the husband’s income above. The wife does not know what L earns and M has no income. Both L and M are students.
The wife’s expenses are as follows:

Expense

Amount

Income tax

$470.00

Superannuation to HESTA

$500.00

Mortgage payments to the Commonwealth Bank

$350.00

Rates

$52.00

Building and contents insurance

$24.00

Health insurance

$59.00

Motor vehicle registration – Ford Fairlane

$20.00

Visa card payments – Commonwealth Bank

$25.00

Payments for support of L, J and M

$70.00

All other expenditure

$500.00

Total

$2070.00

Of the living expenses, the wife says that $250 relates to the husband. That is not what she told Centrelink. Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is not suggested that the wife is not fully exercising her earning capacity.

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

The children of the marriage are all over 18 years of age.

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

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

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

I have set out the detail of those commitments above.

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

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

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

The wife has a substantial superannuation interest. Neither of the parties seeks a splitting order.

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

There is little evidence in relation to the standard of living of the parties during the marriage. The parties enjoyed several overseas holidays. Since separation, the husband had at least two trips to Vietnam.

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

This is not relevant.

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

This is not relevant.

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

The wife supported the husband while he studied and while he gained work experience. I gather the husband would say that contribution is diminished to the extent that his capacity to make use of those qualifications now is circumscribed by his health.

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

The wife gave up paid employment for periods of maternity leave. However, there is no indication that the marriage adversely affected her earning capacity. It is not asserted in the husband’s case that the marriage adversely affected his earning capacity.

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

The children are adults.

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

The evidence about the parties’ cohabitation is set out above.

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

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

There is no child support assessment.

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

There is nothing further requiring attention under this provision.

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

There was no binding agreement made between the parties.

Section 79(4)(f)

There are no relevant orders.

Section 79(4)(g)

There is no child support assessment.

Conclusion

In the event that the court finds that the wife’s contributions were greater than his, the husband argues for a compensating adjustment under section 75(2). The wife seeks a 5% adjustment to her.
There is no basis for an adjustment to the wife. Although his earning capacity is unexercised, the wife probably has a greater earning capacity that the husband. The husband has been out of the paid workforce for 18 years. The wife is left with the thrust of her case on contribution. Although I do not accept that case to the extent it was argued, the wife has succeeded in identifying her efforts to be far in excess of those of the husband for the preponderance of their 34 years together. In those circumstances, how could I find that she is in a worse income earning position than the husband, today?
In favour of an adjustment to the husband is that the wife’s earning capacity is greater than his and the wife will have over $200,000 more than the husband based on contributions alone. Those matters are significant. In my view a 5% adjustment is appropriate. 5% is about $50,000 and represents a differential of over $100,000 between the parties. In a case where the wife contributed about $180,000 to the net asset position of the parties since separation, including saving over $41,000 last year, even though she is 58 years of age and closer to retirement than she would like, such an adjustment is permissible.
There is no specific evidence on the issue but I can accept that notwithstanding her wonderful work ethic, in a physically demanding occupation such as nursing, the wife will not be able to maintain her current work regime long into the future.

Just and Equitable

Based on their contributions and the other matters in s 79 the appropriate division of property is 55% to the wife and 45% to the husband. I must consider whether it would be just and equitable within the context of s 79 if the net assets of the parties were divided in those proportions.
The net assets have a value of $1,052,848. If the assets were divided in the proportions 55% to the wife and 45% to the husband they would receive about $579,066.40 and $473,781.60 respectively.
The wife has and seeks to retain the following:

Assets

Value

W property – joint

$1,000,000

Wife’s Commonwealth Bank account

$41,595

Wife’s Superannuation (HESTA and Colonial First Choice Superannuation)

$113,693

Mortgage on the W property

-$115,000

Total

$1,040,288.00

In order to retain $579,066.40, the wife will need to pay the husband: $461,221.60.
That would leave the husband with:

Assets

Value

Husband’s burial plot

$4,000

Husband’s motor vehicle

$5,000

Husband’s IAG shares

324 @ $3.46

$1,128

Husband’s NIB shares 3,200

$2,432

Payment from the wife

$461,221.60

Total

$473,781.60

I doubt that the wife will be able to fund such a payment. In the event that she does not pay the husband out I will order that the net proceeds of sale of the W property be divided in the proportion that $461,221.60 bears to the parties’ equity in the property [461,221.60:(1,000,000-115,000)]. I will round that fraction to 48% to the wife and 52% to the husband. In that way both parties will share in any profit or loss generated by a difference between the net proceeds of sale and the agreed equity.

Personalty

The parties have not included household contents in the agreed list of assets. The wife wants to retain the Ford Fairlane motor vehicle. She wants the husband to have the contents of a list of personal items. The husband does not formally seek those items or any specific items. The matter was not addressed during the trial nor since. It may be that the parties have made an agreement about this issue.
I will make provision in the orders for the husband to retain the items identified by the wife in her minute of orders.

Conclusion under Section 79

I will express the machinery orders in the form sought by the husband save that the solicitor will be the wife’s solicitor. Of the parties the wife may be more motivated to achieve a sale and division and it may be better if she is able to instruct her own solicitor. I will give the parties leave to relist the matter in relation to the drafting of the orders and any other machinery issues within 14 days.

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 12 March 2009

[2009] FamCA 160

12 March 2009

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Remedies

Costs

Jurisdiction

Injunction

Procedural Fairness

Res Judicata

ASSET	OWNERSHIP	HUSBAND’S VALUE	WIFE’S VALUE
W property	Joint	$1,000,000	$950,000
Burial plot	Husband	$4,000	$3,500
Motor vehicle	Husband	$5,000	$5,000
IAG shares 324 @ $3.46	Husband	$1,121
Commonwealth Bank	Wife	$43,417
HESTA Superannuation entitlement	Wife	$10,131
Colonial First Choice Superannuation entitlement	Wife	$99,747

LIABILITY	OWNERSHIP	HUSBAND’S VALUE	WIFE’S VALUE
Mortgage over W property	Joint	$115,000	$115,000

Assets	Value
W property – joint	$1,000,000
Husband’s burial plot	$4,000
Husband’s motor vehicle	$5,000
Husband’s IAG shares 324 @ $3.46	$1,128
Husband’s NIB shares 3,200	$2,432
Wife’s Commonwealth Bank account	$41,595
Wife’s Superannuation (HESTA and Colonial First Choice Superannuation)	$113,693
Total	$1,167,848.00

Liabilities	Amount
Mortgage on the Wproperty	$115,000
$115,000.00

Expenditure	Amount
Permanent disability insurance – ACE Insurance	$2.00
Health insurance – NIB	$30.00
Visa card payments – Commonwealth Bank	$6.00
All other expenditure	$180.00
Total	$218.00

Expense	Amount
Income tax	$470.00
Superannuation to HESTA	$500.00
Mortgage payments to the Commonwealth Bank	$350.00
Rates	$52.00
Building and contents insurance	$24.00
Health insurance	$59.00
Motor vehicle registration – Ford Fairlane	$20.00
Visa card payments – Commonwealth Bank	$25.00
Payments for support of L, J and M	$70.00
All other expenditure	$500.00
Total	$2070.00