Conway and Jordan

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONWAY & JORDAN

[2016] FCCA 1175

Catchwords:
FAMILY LAW – Property – 24-year de facto relationship – two adult children – equal financial, non-financial and home-maker contributions throughout the relationship – no adjustment under s.90SF(3) of the Family Law Act 1975 (Cth) – net assets of the relationship divided equally between the parties – equalisation of the superannuation interests of the parties.

Legislation:

Family Law Act 1975, ss.4, 90MT, 90SF, 90SM

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Beklar & Beklar [2013] FamCA 327
Elgin & Elgin [2015] FamCAFC 155
Kennon v Spry (2008) 238 CLR 366

Applicant:

MR CONWAY

Respondent:

MS JORDAN

File Number:

MLC 11740 of 2014

Judgment of:

Judge Wilson

Hearing date:

17–18 November 2015

Date of Last Submission:

18 November 2015

Delivered at:

Melbourne

Delivered on:

17 May 2016

REPRESENTATION

Counsel for the Applicant:

E. Taghdir

Solicitors for the Applicant:

Robertson Hyetts

Counsel for the Respondent:

J. Howe

Solicitors for the Respondent:

Nevett Ford

ORDERS

Pursuant to s.90SM of the Family Law Act 1975 (Cth), there be orders altering the property interests of the parties.
The respondent retain for her sole use and benefit the real property situated at and known as Property C, in the state of Victoria, more particularly described in Certificate of Title Volume (omitted) Folio (omitted) and Volume (omitted) Folio (omitted) (“the real property”).
The respondent indemnify the applicant with respect to the (omitted) Bank mortgages encumbering the real property.
The respondent refinance the (omitted) Bank Loan, formally the business loan for (omitted) Pty Ltd and indemnify the applicant with respect to the liability.
Within 7 days of the date of this order, the applicant withdraw at his expense the caveat lodged over the property, caveat number (omitted) and provide to the respondent’s solicitors a copy of the Withdrawal of Caveat.
Within 60 days of the date of the removal of the caveat referred to in order 5 herein, the respondent pay to the applicant the sum of $51,840.00 (“the payment”).
The applicant retain for his sole use and benefit any proceeds of sale from the business known as (omitted) Pty Ltd (“the business”).
The applicant forthwith do all acts and things and sign all necessary documents at his expense to procure the release of the respondent from any or all guarantees given by the respondent in relation to the business.
Both parties be equally liable for the payment of the debt owed on the (omitted) Bank visa card.
In default of the payment referred to in order 6 herein, the respondent forthwith do all acts and things and sign all such documents to place the real property on the market for sale altogether out of Court on the following terms (“the sale”):
(a)by a licensed real estate agent as agreed between the parties or failing agreement then an agent as appointed by the President of the Real Estate Institute of Victoria (“REIV”);
(b)at an agreed reserve price, or failing agreement at a price to be determined by the appointed real estate agent;
(c)on an unconditional REIV contract of sale of thirty days duration pending settlement or as determined by the appointed estate agent as agreed between the parties;
(d)the property may be sold by public auction on the recommendation of the estate agent with the agreement of the parties;
(e)the parties shall do all such acts and things and sign all documents necessary to effect the sale including co-operating with any reasonable request of the estate agent including making keys available, allowing inspection of the real property at times requested by the estate agent and ensuring that the real property dwelling and grounds are in a neat and presentable condition at the time of inspection and auction; and
(f)the conduct of the conveyance as agreed between the parties.
Upon completion of the sale, the proceeds of the sale of the real property are to be applied:
(a)first, to pay costs, commissions and expenses of the sale;
(b)second, to discharge any mortgage(s), the business loan and any other encumbrance affecting the real property; and
(c)third, the balance to be equally divided between the parties with an adjustment of $30,000.00 in favour of the respondent.
Pending the completion of the sale:
(a)the respondent have the sole right of occupation of the real property and during such right of occupation shall make all payments in respect of the mortgage loan, business loan, rates and like outgoings of or in respect of the real property as they fall due;
(b)the parties shall hold their respective interests in the real property on trust and shall not further encumber the real property without the express written consent of the other.
Contemporaneously with the completion of the sale, the parties shall cause all caveats (if any) lodged over the real property to be withdrawn.
Liberty is granted to either party to apply to the Court in respect of any terms and conditions of the sale.
There be a superannuation split of the respondent’s superannuation to the applicant in the sum of $24,758.00.
Paragraphs 17 - 21 (inclusive) of these Orders are binding on the Trustee of (omitted) Superannuation Fund (“the Fund”).
In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth) (Act), whenever a splittable payment becomes payable in respect of the superannuation interest of the respondent MS JORDAN born (omitted) 1971, in (omitted) Super member number (omitted), the applicant MR CONWAY born (omitted) 1971, or his legal personal representative, will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 (Cth) using the base amount of $24,758.00 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
Order 17 of these orders binds the Trustee of the Fund and these orders take effect from the operative time, being the fourth business day after the date of service of these orders on the Trustee.
Each party and the Trustee of the Fund have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.
Until such time as the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant:
(a)the respondent provide to the applicant no less than twenty-eight days’ notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the Fund;
(b)the respondent direct and authorise the Trustee of the Fund to communicate with the applicant and/or any person authorised by him in writing:
(i)to answer any reasonable inquiries as may be made by him or on his behalf from time to time in relation to her entitlement in the Fund; and
(ii)to provide to the applicant and/or his authorised representative with a copy of any notice of any application or request by the respondent which seeks release of entitlements in the Fund in so far as that release may affect the applicant’s entitlement in the Fund pursuant to these orders.
(c)the respondent by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the applicant, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.
In the event that the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106(A) of the Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.
Unless otherwise specified in these orders and save for the purposes of enforcing monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders including all motor vehicles;
(b)monies standing to the credit of the parties are to remain the property of that party;
(c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other party;
(d)insurance policies remain the sole property of the life insured named therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11740 of 2014

MR CONWAY

Applicant

And

MS JORDAN

Respondent

REASONS FOR JUDGMENT

Introduction

By Initiating Application filed on 24 December 2014, the applicant Mr Conway (“the applicant”) sought orders pursuant to s.90SM of the Family Law Act1975 (Cth) (“the Act”) for the alteration of property interests with the respondent Ms Jordan (“the respondent”). Under s.90MT of the Act, the applicant also sought orders splitting the superannuation entitlements of the respondent.

Synopsis

For the reasons that follow, in my judgment orders should be made altering property interests in accordance with these reasons and for splitting superannuation.

Background

This proceeding follows from the collapse of a de facto relationship between the applicant and respondent. The de facto relationship commenced in 1989 and came to an end in January 2013. At the date of trial, the applicant was 44 years of age and the respondent was also 44 years of age. For most of the time during which the parties enjoyed their relationship, the applicant carried on business as a (business omitted). Over the same period, the respondent carried on business as a (business omitted) working as a (occupation omitted). From their relationship, two daughters were born to them. The eldest was X (“X”), born (omitted) 1992, making her 23 years of age at the date of the trial. The second daughter, Y (“Y”), was born on (omitted) 1995, making her 20 years of age at the date of the trial.
To better understand the issues in this proceeding and to understand the way those issues have been determined, it is necessary to set out a little background.
The parties met in 1988 or thereabouts. In 1989, the parties commenced living together. Neither party suggested they commenced their relationship contributing any assets of value. To the contrary, the evidence revealed that the parties began their relationship as teenagers and thereafter built their lives together. It was uncontroversial that they purchased the land and improvements known as Property C, (“the (omitted) home”), where they lived and raised their children.

The (omitted) business

Very little evidence was adduced about the applicant’s working history prior to his establishment of (omitted) Pty Ltd. Such information as there was about (omitted business) came from the respondent. She give evidence that the applicant purchased (omitted business) for $100,000.00 in June 2011, which I took her to mean that the applicant acquired all of the issued shares in the capital of (omitted business) in June 2011. No direct evidence was given to that effect such as through records from the Australian Securities and Investment Commission (“ASIC”). Be that as it may, so as to enable the applicant to acquire the shares in (omitted business), he borrowed the sum of $120,000.00 from the (omitted) Bank. According to the respondent, the applicant applied the sum of $120,000.00 in acquiring the shares in (omitted business) as well as in acquiring business, stock and additional equipment. The respondent gave evidence that she guaranteed the applicant’s obligations to the (omitted business) under that loan facility. In this proceeding, the parties referred to the loan of $120,000.00 from the (omitted business) to the applicant (and guaranteed by the respondent) as “the business loan”.
Neither party disputed that the applicant worked the business of (omitted business) on a day-to-day basis and that the respondent attended to bookwork when time permitted away from her daily occupation as a (occupation omitted). The evidence revealed that the applicant was the sole shareholder in (omitted business) yet both he and the respondent were directors of (omitted business). It was uncontroversial that the respondent resigned as a director of (omitted business) on 29 May 2013. The applicant remained a director of (omitted business) when this proceeding was heard.
Both parties agreed that (omitted business) ceased trading in or about September 2013.
Both parties gave evidence that (omitted business) was sold for $66,000.00 including stock and equipment. Initially, the respondent contended that the sale was at an undervalue and that by reason of (omitted business) not trading for an extended period, stock spoiled and was rendered valueless. The respondent later abandoned arguments concerning waste.

The applicant’s other employment

The applicant gave evidence that he suffered a breakdown in July 2013 following the demise of his relationship with the respondent, together with the compounding effect of the stress of running the business of (omitted business). He gave evidence that he took daily medication for depression and anxiety. In cross-examination, the applicant said he suffered a nervous breakdown in June or July 2013 and that he was admitted to a centre that dealt with persons who suffered from nervous breakdowns. Ms Howe, counsel for the respondent, asked the applicant for the name of the centre that he said he attended. He said he was unable to provide its name. For reasons addressed below in respect of issues, some important, others not, the applicant’s recall of dates, names or events was defective. He conceded as much. So far as his evidence was concerned that he was admitted to a centre in relation to a nervous breakdown, I accept that evidence, even though the applicant was unable to recall the name of the establishment, its address, the date of his admission or the duration of his stay. The respondent challenged the fact that the applicant suffered any formal breakdown or that if he did, it adversely affected his ability to earn income while he was so affected.
No medical evidence was adduced in this case. In the absence of any such direct evidence, I have been unable to objectively assess the likelihood of the applicant’s stated depressive illness adversely affecting his ability to earn income in the period from separation (January 2013) and the date on which the applicant gained employment after (omitted business) permanently closed its doors.
The applicant gave evidence that in June 2014, he commenced employment with (employer omitted) in (omitted). In the financial year ended 30 June 2015, the applicant said his gross income was $54,000.00 although that varied according to shifts worked and penalties. That amount of $54,000.00 corresponded reasonably closely with the amount of total weekly income revealed in the applicant’s financial statement sworn 11 November 2015, in which the applicant stated that his weekly income was $1,038.00, thereby producing an annualised amount of $53,976.00.

The respondent’s circumstances

The respondent gave evidence that during her relationship with the applicant, neither party received any sum by way of inheritance, compensation payment or other significant gift of money. The applicant did not challenge that evidence. The respondent gave evidence that she was employed for the whole of the duration of her relationship with the applicant, except for a period of about six weeks following the birth of each of X and Y. The applicant did not challenge that evidence. The respondent gave evidence that she was employed on a full-time basis as a (occupation omitted) earning approximately $55,000.00 per annum.
The respondent gave evidence that in between periods of employment, the applicant was unemployed for several months at a time during which the respondent was required to maintain her position as well as undertake the role of being primary home-maker and parent so as to ensure that day-to-day living expenses were met. The applicant contended that he too undertook home-maker and parental duties when the respondent worked during afternoons for about 10 years - the responsibilities of home-maker and parent essentially being equal.

Agreed list of assets and liabilities

Counsel for both the applicant and respondent reached agreement in relation of the assets, the interests in which fell for determination in this proceeding. The list became Exhibit 1 by consent. Its details are reproduced hereunder -
a)Assets –
i)real property situate at Property C, - $400,000.00; and
ii)business known as (omitted) Pty Ltd –
1. applicant’s value - $60,000.00 (exclusive of GST);
2. respondent’s value - $66,000.00.
b)Liabilities –
i)(omitted) Bank mortgage - $96,403.00;
ii)(omitted) Bank mortgage - $48,006.00;
iii)(omitted) Bank business loan - $91,911.00; and
iv)(omitted) Bank visa card (the “visa card”) (at date of separation) - $2,221.00.
c)Superannuation –
i)applicant - $27,821.00; and
ii)respondent - $77,337.00.

List of issues for determination

After preliminary discussions with counsel for both parties and after subsequent discussions during the trial of this proceeding, counsel provided a three-point list of issues that fell for my determination. The final list was as follows –
a)the post-separation contribution of the parties to the support, welfare and maintenance of the children of the relationship;
b)following the sale of the business (omitted business), whether the net benefit should be considered as $60,000.00 or $66,000.00 and whether GST will be paid on the sale; and
c)in respect of funds applied post-separation, whether –
i)the respondent should be responsible for the post-separation borrowings of $50,000.00; and
ii)the withdrawal and application of (omitted) Group funds.

Events following separation

The applicant gave evidence that after separating from the respondent in January 2013, he left the Property C home and took accommodation at the rear of the shop where (omitted business) traded. The applicant said he slept in his car for a time as well. He gave evidence that he eventually relocated to (omitted).

The transfer of the Property C home

The applicant swore in his trial affidavit[1] that under duress he signed documents that had the effect of transferring his interest in the Property C home to the respondent. The applicant swore that the respondent convinced him that she was acting in both hers and his interests in having the applicant execute a transfer of his interest in the Property C home to the respondent. The applicant swore that the respondent made him believe (his words) that although the property would be solely in the respondent’s name, the applicant was still to have a continued joint entitlement to it and that if the parties did not reconcile, a fair split would be agreed.
[1] Trial Affidavit of Mr Conway sworn 11 November 2015.

The respondent gave evidence that (on a date she did not specify) she and the applicant agreed that she would retain the Property C home. The respondent stated in her trial affidavit sworn 11 November 2015 that in approximately May 2013, she and the applicant signed transfer documentation to transfer the title to the Property C home from the joint names of the parties into the sole name of the respondent. She also swore in her trial affidavit that the parties executed documents to refinance the mortgage over the Property C home into her name solely and that in July 2013 registration of the transfer into the respondent’s sole name was effected. The respondent denied forcing the applicant to sign any documentation. She also denied influencing the applicant to execute the transfer. The respondent further denied using false pretences to procure the applicant’s execution of the instrument of transfer of the mortgagee in the respondent’s sole name.
No cross-examination of the respondent was directed to putting to her the applicant’s contentions about the execution of the transfer out of joint names and into the sole name of the respondent. The applicant did not press the point about documentation in relation to the transfer of the Property C home having been executed by the applicant under duress, undue influence or falsity of any form. Having regard to the respondent’s denial of duress, undue influence or falsity and there being no challenge of her on those issues, I am not satisfied that the applicant’s version about the events leading up to and the execution of the transfer documentation is necessarily correct.
In this proceeding, the respondent sought orders retaining the Property C home for her sole use and benefit. The applicant initially sought orders for the sale of the Property C home and that the business loan be discharged from the proceeds of sale with any residue being applied equally between the parties.
The respondent also sought orders compelling the applicant to remove caveat (omitted) from the Property C home. Very little evidence was adduced in respect of that caveat. The respondent stated in her affidavit sworn 11 November 2015 that she became aware in February 2015 that the caveat had been lodged. Details of the interest asserted by the applicant in the caveat were not given nor was the date given in respect of the creation of the interest claimed. So far as the proper approach to adopt in respect of the caveat is concerned, it seemed to me that its fate will follow the orders made in relation to the disposition of the Property C home.

The increase in the indebtedness to (omitted) Bank

The respondent gave evidence that after the transfer of the Property C home had been effected, she refinanced the mortgage and has thereafter been solely responsible for mortgage repayments. The respondent swore in her affidavit filed 11 November 2015 that in December 2013, she obtained a further advance secured by mortgage for the purpose of completing home improvement. She described that latter mortgage as “the second mortgage”.[2] No evidence was adduced concerning the Certificate of Title to the Property C home. However, the applicant did not take issue with the fact that the respondent undertook borrowings after their separation and that those borrowings were secured against the Property C home.
[2] Affidavit of Ms Jordan sworn 11 November 2015, at [27].
In his trial affidavit sworn 11 November 2015, the applicant referred to the respondent refinancing the mortgage over the Property C home into her own name and that (omitted) Bank later lodged a caveat because, so the applicant said, “the business loan was still outstanding and was not secured”.[3] The applicant also deposed that since separation, the respondent increased the loan secured against the Property C home from approximately $100,000.00 to $150,000.00.[4]
[3] Trial Affidavit of Mr Conway sworn 11 November 2015 at [28].
[4] Trial Affidavit of Mr Conway sworn 11 November 2015 at [30].
Two caveats were referred to in the documentation in this litigation, each recording (omitted) Bank as caveator. The first was caveat (omitted). The date of its creation was not given in evidence nor was the interest claimed but it seems likely enough that (omitted) Bank asserted an interest as mortgagee. The second caveat in favour of (omitted) Bank was registered (omitted). Similarly, the date of its creation was not given and as with the other caveat, was likely to have been connected with an advance to the respondent. The proofs in this case were very poor about the Property C home, the registered proprietors of it from time to time, the mortgagees in respect of it and the amounts outstanding from time to time.

The (omitted) Bank accounts

Through the respondent, certain (admittedly incomplete) bank statements were adduced in evidence. It would have assisted had I been told whether and if so to which caveat each account related. Be that as it may, account (omitted), styled the “Business Transaction Account” was in operation after the date of separation up to and beyond January 2014.[5] Another account, styled “(omitted)”, being account (omitted) covered the period 5 February 2014 to 26 March 2014.[6]
[5] Exhibit 3, Business Transaction Account number (omitted) for the period of 13 December 2013 to 6 March 2014.
[6] Exhibit 7, (omitted) account number (omitted) for the period of 5 February 2014 to 26 March 2014.
One of the major issues in this litigation was the proper treatment of post-separation expenses. The details of each of those payments are set out below. The respondent argued that post-separation contributions were unequal and required adjustment.

The sale of (omitted business) and the proceeds

Both parties conducted this trial on the basis that the (omitted) business and undertaking was sold for $66,000.00. One of the issues that fell for determination in this case was the liability for taxation on the sale of (omitted) for $66,000.00. The applicant and one Mr J (“Mr J”) identified that $6,000.00 was payable on that transaction on account of goods and services tax (“GST”). The applicant contended that the net benefit of the sale of (omitted business) was $60,000.00 and not $66,000.00. Consistent with the approach adopted by the Full Court of the Family Court of Australia in Elgin & Elgin,[7] I am required to allow for taxation consequences when undertaking an alteration of property pursuant to s.90SM of the Act. To that end, I have factored into the financial adjustment in this case the fact that GST of $6,000.00 is payable by the applicant upon the sum of $66,000.00.
[7] [2015] FamCAFC 155.
While the amount attributed to the sale of (omitted business) was not disputed, the fact of there being a valid sale of business remained questionable. That was relevant to the legitimacy of the amount attributed to the (omitted) business. If the so-called agreement was found to be unenforceable then the amount attributed to it was illusory, a matter relevant to the adjustment exercise that I must perform.
In his trial affidavit sworn 11 November 2015, the applicant stated that he and the person called Mr J entered into an agreement pursuant to which Mr J agreed to pay the applicant the sum of $66,000.00 including GST for the business. The applicant swore that at the date of his affidavit, Mr J had made payments totalling no more than $35,000.00. The agreement to which the applicant referred became Exhibit 2 and was in writing dated 29 January 2015. It was expressed to have been executed by the applicant as business owner and by Mr J as business buyer. The sale price was expressed as $60,000.00 which, when GST of $6,000.00 was added, produced the amount described as the total amount owing of $66,000.00. In the agreement the parties acknowledged that Mr J had paid $1,800.00 towards the purchase price, thereby reducing $66,000.00 to $64,200.00. The agreement was silent as to the payment of the balance of $64,200.00. No date was stipulated in the document for a date or dates by which the balance was to be paid nor even was machinery prescribed by which a payment regime might have been deduced. Nevertheless, in his trial affidavit sworn 11 November 2015, the applicant stated that to the date of his swearing his affidavit, Mr J had paid $35,000.00 “in furtherance of that agreement”,[8] which I interpreted to mean in reduction of the sum of $66,000.00.
[8] Trial Affidavit of Mr Conway sworn 11 November 2015 at [37].
The apparent uncertainty of the arrangement for the payment of the balance caused me to raise with Mr Taghdir, counsel for the applicant, whether the agreement was void for uncertainty on the basis that the agreement made no provision for the payment of the balance of the purchase price. Counsel for the applicant submitted that Mr J was honouring his obligations under the agreement and that the agreement was not void for uncertainty. Counsel for the respondent did not contend that the agreement was void for uncertainty. To the contrary, she submitted that even though a portion of the purchase price was not paid (being the difference between the contract sum and the sum paid to date) the full amount of the purchase price ($66,000.00) was the agreed figure in respect of the sale of (omitted business). Both parties proceeded on the basis that the amount to be adjusted in relation to the sale of (omitted business) was $66,000.00.
Whether the applicant was entitled to sell the assets of (omitted business) and appropriate the proceeds of that sale to his own use and benefit was an issue canvassed with counsel for both parties. Counsel for the respondent submitted that (omitted business) had ceased trading by the date on which the applicant entered into the agreement with Mr J for the sale of (omitted business) assets. She submitted that the applicant was entitled to enter into that sale even though title to those assets was (omitted business) and that, on one view, the assets were not the applicant’s to sell. Ms Howe relied on the observations of the High Court of Australia in Ascot Investments Pty Ltd v Harper[9] (“Ascot Investments”). That case concerned very different facts to those with which the parties are concerned in this case and it turned on points of law that do not concern these parties. To my way of thinking, the decision in Ascot Investments[10] is of little utility in the determination of this case. That said, neither party disputed that the applicant was in effective control of (omitted business) at all relevant times. Equally, even though (omitted business) had ceased trading, (omitted business) had not been deregistered nor had it been wound up. It had not ceased to exist as a legal entity and so property in its assets had not passed to ASIC.
[9] (1981) 148 CLR 337.
[10] Ibid.
Having regard to the fact that -
a)both parties sought orders addressing the disposition of the proceeds of the sale of (omitted) business;
b)both parties were the persons with day-to-day operations and management of (omitted business) and that no third person (beyond Mr J) was mentioned in evidence as being involved in or affected by the proposed sale of (omitted business) assets; and
c)in all the circumstances it is just and equitable to proceed to make orders relating to the disposition of the proceeds of sale of (omitted business) assets,
I am of the view that it is legitimate for me to make orders in accordance with the wishes of the parties.

Post-separation considerations

The respondent put in issue a number of payments that she contended had been made after separation to which she said the applicant should contribute. It is necessary to separately consider each.

Veterinary expenses

The respondent claimed that the applicant was required to contribute towards the sum of $2,550.00 paid by the respondent to (omitted) Veterinary Clinic with respect to a dog. The respondent asserted that the Court needed to make an adjustment in respect of that payment of $2,550.00 by reason of the fact that the payment benefitted Y, the daughter of both parties.
The applicant gave evidence that he did not authorise the expenditure of those veterinary payments. He said had he did not even know Y had a dog. The applicant said the dog must have been acquired by Y after the date of separation. He gave evidence that he did not know Y’s dog required urgent veterinary attention. The applicant said that he did not benefit from the veterinary procedure to Y’s dog. The respondent gave evidence that the surgery to Y’s dog arose in urgent circumstances during which it was not possible to discuss the matter with the applicant and therefore it was not possible to obtain his agreement to the performance of the procedure. The applicant disputed his liability to pay the veterinary expenses for Y’s dog.
The respondent gave evidence that the sum of $2,550.00 paid to (omitted) Veterinary Clinic was made up of the following payments:
a)$650.00 on 12 March 2015,
b)$900.00 on 17 March 2015; and
c)$1,000.00 paid on 26 March 2015.[11]
[11] Exhibit 5, (omitted) account number (omitted) for the period of 1 March 2015 to 26 March 2015.
In my judgment the amount of $2,550.00 is not an amount for which the applicant should be liable. I accept that he had no involvement in relation to Y’s dog, its welfare or its medical care especially as Y is now an adult (and was at the time the liability for the veterinary expenses were incurred) and the dog is hers. To my way of thinking, an owner of a pet bears the responsibility for that pet and the owner must shoulder the financial responsibility that goes with the pet’s health. I am not persuaded that the applicant is required to contribute towards the veterinary expenses of Y’s dog.

Payment for Y’s car

The respondent swore in her affidavit of 11 November 2015 that she paid $8,394.12 to assist Y with the purchase of Y’s motor vehicle.[12] Ms Jordan contended that Mr Conway was required to contribute to that expenditure.
[12] Affidavit of Ms Jordan sworn 11 November 2015, at [27.2].
The respondent gave evidence that she and the applicant came to an arrangement during the currency of their relationship that they would give each of their daughters a car. The respondent said X was given a car then Y was given a car. The respondent was challenged about the existence of that agreement. She said the agreement was verbal and by its terms involved the parties applying funds obtained from (omitted) Group towards the purchase of the car for Y. The respondent gave evidence that she contributed $8,394.12 from (omitted) Group funds towards the purchase of Y’s car yet she conceded that the sum of $8,394.12 was drawn from the home loan. The respondent swore that the date of the purchase of the car was March 2014, namely 14 months following separation.
The real issue in relation to the purchase of Y’s car is the applicant’s liability to contribute to the cost of it. In turn, that depends on whether the agreement asserted by the respondent was in fact proved. In my judgment it was not.
The applicant gave evidence that he and the respondent used funds from (omitted business) to purchase a car for X but he disagreed that any such agreement existed in relation to purchasing a car for Y. The applicant gave evidence that he had not seen the car nor had he seen a lease in respect of the car. The applicant was not cross-examined about the existence or terms of any arrangement he may have had with the respondent about providing a car to Y. No doubt for good forensic reason, Ms Howe did not pursue the issue. That left the evidence in a state where the respondent asserted the existence of such an arrangement and the applicant denied any such arrangement. There having been no meaningful testing of either proposition, I was left unpersuaded that the arrangement for which the respondent contended was proved. However, that may not matter because the respondent admitted in cross-examination that she paid for the purchase of the car for Y from the home loan and not from her own funds. Further, the respondent admitted that she “wouldn’t have consulted (the applicant) about the purchase of the vehicle”[13] prior to the purchase of Y’s car.
[13] Transcript of Proceedings, 18 November 2015, p.84 at lines 24-25.
The evidence revealed that Y was an adult when the vehicle was purchased and that the parties had separated by that date. There was no evidence that the applicant was consulted prior to the vehicle’s purchase or that the applicant had any say in relation to the magnitude of the expenditure. I am not persuaded that the sum sought by the respondent in relation to the acquisition of Y’s car is properly to be adjusted in the manner contended for by the respondent.

Legal fees of $31,378.39

The respondent swore in her trial affidavit that she used money drawn down against the second mortgage to pay her legal fees of $31,378.39.[14] She did not produce any documentary evidence to support her contention that she expended over $30,000.00 in legal fees. For example, the respondent did not produce payment records from her own bank or invoices from the solicitors who allegedly charged her that amount. For that matter, she did not depose to the purpose of the legal services for which the amount of $31,378.39 was allegedly paid. Her comment was very glib when she swore that the sum of the $31,378.39 was “with respect to legal fees”.[15]
[14] Affidavit of Ms Jordan sworn 11 November 2015, at para.27.7.
[15] Ibid.
In terms of the source of funds for the payment of legal fees, even assuming I could properly make a finding that those legal fees were somehow relevant to this case, the respondent’s evidence was very imprecise. She swore that she used funds derived from the second mortgage advanced in paying legal fees. The only entry in any bank statement referrable to Nevett Ford Ballarat appeared on page three of 13 in respect of the (omitted) account in relation to a transaction on 3 March 2014, yet the amount was at $2,960.19 and not $31,378.39.[16]
[16] Exhibit 5, (omitted) account number (omitted) for the period of 1 March 2015 to 26 March 2015.
I am not persuaded that the respondent has proved on the balance of probabilities that she is entitled to any financial adjustment in relation to the asserted sum of $31,378.39.

Installation of the antenna

The respondent contended that she was entitled to a financial adjustment of $550.00 in relation to a payment she said she made for the installation of a new aerial. The respondent did not say where the aerial was installed. However, I am willing to proceed on the basis that it was installed at the Property C home. The respondent exhibited an invoice from the contractor who was said to have installed the aerial.[17] Despite the modest sum involved, the proofs associated with this component of the claims were scant. The respondent swore that she use the funds obtained from the second mortgage to pay for the installation of the antenna.[18] The respondent did not take me to any bank statements, cheque stubs or cash acknowledgments indicating that the invoice had in fact been paid. However, the respondent gave evidence that the sum was paid. She was not cross-examined about the fact of payment or the amount.
[17] Affidavit of Ms Jordan sworn 11 November 2015, at Annexure “A”.
[18] Affidavit of Ms Jordan sworn 11 November 2015, at [27.1].
Accepting as I do that on the balance of probabilities the service undertaken in installing the antenna was likely to have taken place on or about 25 March 2014, the applicant was not living at the Property C home at the time. No evidence was adduced to the effect that the applicant knew of or approved of the installation of the antenna or that he benefitted from its installation. I can see no warrant for financial adjustment being made in relation to the sum of $550.00 for the antenna.

The new fence costs

The respondent sought financial adjustment in relation to new fencing at the Property C home to the value of $4,207.50. A copy of an invoice for that amount became Exhibit 6.[19] In her evidence in chief, the respondent said the sum of $4,207.50 was paid in parts, of which $1,750.00 was paid on 16 February 2014. A debit transaction in the bank statement tendered as Exhibit 7 in which the transaction was described as “Transfer to other (omitted) deposit” supported the respondent’s evidence.[20] The respondent was asked by her counsel to identify the flow of funds by which the respondent paid the balance, that is to say, the difference between the invoiced amount of $4,207.50, less the payment made on 16 February 2014 of $1,750.00. The respondent gave evidence that she paid the deposit (being $1,750.00) and then she “paid some more in later dates out of money (she) got out of the bank”.[21] When pressed for further details of the statement that she paid, Ms Jordan gave evidence that she withdrew $10,000.00 and that she used that sum in payment of a number of amounts including the payment of the balance for the fence. She said “[t]he $10,000 was used to pay for the fence but I don’t know how much of it”.[22] Exhibit 7 contained a debit entry dated 19 March 2014 for $10,000.00.[23] No documentary evidence was adduced by which I am able to find that funds from the $10,000.00 withdrawal on 19 March 2014 were applied to pay the balance of the amount due in respect of the fence. The respondent’s viva voce evidence did not advance matters. In short, other than the sum of $1,750.00, I am not satisfied that the respondent proved payment for the fence.
[19] Exhibit 6, Tax Invoice dated 23 February 2014 from (omitted) Fencing to Ms Jordan in the amount of $4,207.50.
[20] Exhibit 7, (omitted) account number (omitted) for the period of 5 February 2014 to 26 March 2014.
[21] Transcript of Proceedings, 17 November 2015, p.66 at lines 1-2.
[22] Transcript of Proceedings, 17 November 2015, p.66 at lines 32-33.
[23] Exhibit 7, (omitted) account number (omitted) for the period of 5 February 2014 to 26 March 2014.

As to there being a need to make a financial adjustment in relation of the costs associated with the fence, as with several other items claimed in this litigation, the fence is on land owned by the respondent. The invoice was dated 23 February 2014.[24] The respondent had become the transferee of the Property C home by that date. No evidence was adduced to the effect that the applicant was consulted about the work prior to the work being done. In any event, no evidence was adduced to the effect that the applicant benefitted from the work having been done in the first place. The work improved an asset owned by the respondent. In those circumstances I see no basis for making any financial adjustment in respect of the fence.
[24] Exhibit 6, Tax Invoice dated 23 February 2014 from (omitted) Fencing to Ms Jordan in the amount of $4,207.50.

Business loan payments

The respondent contended that on and from 22 April 2015 she had personally met loan repayments of $292.25 per week. She said she made those payments in that manner by reason of the fact that the applicant’s financial incapacity did not enable him to reduce the business loan. The applicant gave evidence that in June 2014 he commenced employment in (omitted). He said he paid the loan repayments from June 2014 until December 2014 and that in December 2014 he ceased paying the business loan.
The applicant’s viva voce evidence about the date on which he stopped paying the business loan was equivocal. He frankly admitted that he could not tell the Court what day he stopped paying the business loan. The applicant admitted that the respondent paid approximately $7,000.00 in reduction of the business loan once he stopped contributing to the repayment of that loan. For the purposes of this proceeding, there being no evidence having any greater probative value on point, I am willing to advance on the basis that the amount paid by the respondent in reduction of the business loan once the applicant stopped making payments was $7,000.00. That was the amount put by Ms Howe to the applicant in cross-examination to which the applicant agreed.

$50,000.00 borrowings

The applicant identified as a discrete matter calling for financial adjustment the sum of $50,000.00 he contended the respondent borrowed against the Property C home. The applicant gave evidence that the respondent refinanced the mortgage on the Property C home without his knowledge or consent. His comments in relation to refinancing the mortgage without his consent were imprecise. They overlooked the fact that his consent was not required if the refinancing of the mortgage occurred after the applicant transferred his interest as mortgagor to the respondent. If the refinancing took place while he remained a registered proprietor and mortgagor, as a matter of banking and conveyancing practice it was almost inconceivable that the relevant bank would have increased the sum advanced in the absence of written authority from the mortgagor, the applicant.
The point was not clarified in the evidence the applicant gave in the witness box. Therefore, his comment in paragraph 24 of his trial affidavit sworn 11 November 2015 went untested. The evidence was so deficient on the point that I was unable to attribute any veracity to it, still less any probative value.
It may not matter as the applicant’s real grievance about $50,000.00 in borrowings emanated from paragraph 30 of his trial affidavit sworn 11 November 2015. There, the applicant stated that he ascertained during the interlocutory phases of this litigation that the respondent increased the loan secured against the Property C home from approximately $100,000.00, when he said he and the respondent initially separated, to $150,000.00. The applicant swore that the increase in $50,000.00 occurred in December 2014.[25] That was almost two years following separation. The applicant sought an adjustment of the sum of $50,000.00.
[25] Trial Affidavit of Mr Conway sworn 11 November 2015 at [31].
In her trial affidavit sworn 11 November 2015, the respondent did not address the applicant’s contentions in this regard.
Nowhere in the bank statements tendered in evidence was there any reference to $50,000.00 in or about December 2014. Nor was there any evidence about what became of that sum of $50,000.00, especially in reference to the applicant’s allegation that $50,000.00 was transferred to the personal account of the respondent. The evidence did not bear out an increase of the loan secured by the Property C home in the sum contended for by the applicant. I am unable to accept the applicant’s assertions in relation to the $50,000.00. Mr Taghdir took the applicant in his evidence-in-chief to a bank statement that was apparently dated 9 December 2013 which showed loan drawings of $50,000.00 yet Mr Taghdir, when asked whether he relied on the document said “[n]o, I don’t, your Honour. It’s just a clarification”.[26] As a result, no bank statement went into evidence in relation to the alleged amount of $50,000.00. That had the consequence that the applicant’s assertions about the sum of $50,000.00 were not proved. I am unable to accept the applicant’s contentions about the sum of $50,000.00 for the purposes of this proceeding.
[26] Transcript of Proceedings, 17 November 2015, p.12 at line 27.

Operative family law legislative provisions

The parties enjoyed a de facto relationship between 1989 and 2013. The provisions of s.90SM of the Act apply to the alteration of their property interests by reason of their status as de facto partners. In property settlement proceedings, after the breakdown of a de facto relationship the general approach of this Court is essentially the same as that under s.79 of the Act.

Application of the legislation

The starting point is s.90SM(1) of the Act. Under that section of the Act, the court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a de facto relationship in relevant property. For the purposes of s.90SM of the Act, “property” has the meaning given to that word in s.4 of the Act.
Section 90SM(3) of the Act contains a specific injunction preventing a court from making an order under s.90SM(1) of the Act unless the court is satisfied that it is just and equitable to make an order for the alteration of property interests. In other words, before a court proceeds to alter property interests, the threshold issue must be affirmatively met, namely, that in all the circumstances it is just and equitable for the court to make such an order.
Upon being satisfied that it is just and equitable to make an order for the alteration of property interests, ss.90SM(4)(a), (b) and (c) of the Act require the court to take into account –
a)direct and indirect financial contributions the party made to the acquisition, conservation or improvement of any property of the parties;
b)direct and indirect non-financial contributions to the acquisition, conservation or improvement of any property of the parties; and
c)the contribution the parties made to the welfare of the family and children of the de facto relationship, including in their capacity as homemaker or parent.
Under s.90SM(4)(d) of the Act, a court is required to take into account the earning capacity of either party to the de facto relationship.
Under s.90SM(4)(e) of the Act, a court is required to take into account the matters that are set out in s.90SF(3) of the Act. Those relate to the prospective positions of the parties by reference to their financial resources, means and needs.
The matters set out in ss.90SM(4)(f) and (g) do not appear relevant.
In this case, I propose to canvass separately each of the matters prescribed by s.90SM(4) of the Act.

Direct or indirect financial contributions to the acquisition, conservation or improvement of property

As is set out above, the evidence revealed that the parties commenced their relationship as teenagers without anything substantial in the way of assets or inheritance. Their income throughout the relationship was largely equal, although the uncontroverted evidence revealed that for a period, the applicant was unemployed and therefore not generating an income. Conversely, for relatively short periods following the birth of X and Y, the respondent worked continuously throughout the relationship.
Neither party contended that any large disparity existed between the direct and indirect contributions of each of the applicant and respondent throughout their lengthy relationship.
So far as the property acquired, conserved or improved was concerned, the most significant asset of the parties was the Property C home. They agreed that its value was $400,000.00. Other modestly valued assets emerged from the evidence including a Nissan (omitted) motor vehicle, the value of which was said to be $2,000.00, and a Hyundai (omitted) motor vehicle also loosely valued at $2,000.00. The applicant’s trial affidavit sworn 11 November 2015 revealed chattels in the Property C home of approximately $10,000.00 although that amount was not independently verified.
So far as the improvement of property was concerned, the only evidence in this case of improvement related to the fence and the expenditure of an amount a little over $4,000.00, details of which have been canvassed above.
The other major item to which the parties made a direct or indirect financial contribution in respect of its acquisition, conservation or improvement was (omitted business). It will be recalled that the applicant purchased the shares in (omitted business) for $100,000.00 in June 2011 and that after the acquisition of (omitted business), both parties worked in various ways in advancing, bettering, improving and running (omitted business). No direct evidence was led as to the amount of time each worked in the business or in respect of its affairs. However, the evidence revealed that the respondent undertook book-keeping activities when she was able to do so, away from her other paid employment as a (occupation omitted).
So far as the purchase price of (omitted business) was concerned, the evidence, such as it was, revealed that each of the parties became liable for the loan by which they acquired (omitted business) and each duly met their obligations under that loan for most of their relationship.
As to incomes, the evidence revealed that the applicant’s income and the respondent’s income were essentially equal. Counsel for the respondent advanced the submission that the incomes were roughly equal, a proposition with which I agree. The applicant admitted that since separation he had not made any mortgage payments on the Property C home and that the respondent paid all sums due in in respect of utilities, rates and outgoings.

Direct or indirect non-financial contributions to the acquisition conservation or improvement of property

Almost no evidence was adduced in relation to the contributions identified by s.90SM(4)(b) of the Act. The parties did not run this case on the basis that non-financial contributions were unequal. To the contrary, the case proceeded on the basis that the parties’ non-financial contributions were essentially equal, a proposition advanced in final address by Ms Howe.

Contribution by the parties made to the welfare of the family, including in their capacity as homemaker or parent

Each party was active throughout the relationship as a diligent parent. The evidence in relation to other contributions towards the children concerned child support for the period from January 2013 until the date when Y turned 18 years, six months in all. The applicant said that following separation, he provided $2,000.00 per week on average for the respondent and Y. He said that amount was an approximation as “[s]ome weeks it was less, some weeks more, some weeks it was none, and I can't give you a figure of exactly what … (the respondent) controlled all the bookwork”.[27] I accept that evidence. I also accept that the respondent controlled the bookwork of the two so if she wanted to undermine the veracity of the applicant’s evidence about his provision of roughly $2,000.00 per week by reference to any bookwork, she had the opportunity to do so and failed to challenge him on that issue. In the result, I am not persuaded that the applicant failed to make financial contributions to the welfare of the family as is set out in s.90SM(4)(c) of the Act. Put differently, I have taken into account the fact that since separation, the applicant did in fact contribute to the welfare of the family as is provided for in s.90SM(4)(c) of the Act.
[27] Transcript of Proceedings, 17 November 2015, p.37 at line 47 and p.38 at lines 1-2.

Section 90SF(3) matters

The list of issues to which consideration must be given for the purposes of s.90SF(3) of the Act is long and detailed. I have carefully considered each. Some are more significant in this case than are others.
As to the age and state of health of the parties, each was 44 years of age at the time of the hearing of this case. Each was in good health although the evidence revealed a suicide attempt by the applicant. The prospects of gainful employment of each party are favourable having regard to their age. Both children of the relationship are adults. X has not lived with her parents for a time. Y currently lives with the respondent although she has attained her majority. Neither party gave evidence about the receipt of or an entitlement to a pension. Since separation, the respondent has lived in the Property C home. However, the evidence did not enable me to make any meaningful findings about the standard of living that each currently enjoys nor one that is reasonable. No particular matter was raised as a fact or circumstance which the justice of the case required to be taken into account.

The parties’ submissions

Each of the applicant and respondent advanced very different submissions as to the orders which should be made in this proceeding. In essence, the respondent submitted that she should retain the Property C home, the applicant should retain the proceeds of sale of (omitted business) and that orders should be made splitting superannuation. The respondent proposed that the applicant be relieved of certain borrowings.
In essence, the applicant contended that he should retain the proceeds of the sale of (omitted business), the respondent should retain the Property C home and make a payment to the applicant and in default of payment, the Property C home be sold and once secured liabilities and debts to (omitted) Bank were discharged, the net proceeds be distributed equally as between he and the respondent. The applicant proposed orders in relation to the splitting of superannuation.

Altering the property interests in this case

In my judgment it is just and equitable to make orders altering the property interests of the parties. The applicant and respondent once enjoyed a successful relationship but that ended in January 2013.
Let me first turn to the property in respect of which adjustment is to be made. Section 4 of the Act provides that “property” in the context of a de facto relationship means “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”. In Kennon v Spry,[28] the High Court of Australia held that “property” in the context of the Act is to be accorded a wide meaning.
[28] (2008) 238 CLR 366.
It is well settled that, exceptional circumstances aside, the date on which reckoning should be made in respect of property is the date of the hearing. On that date, all matters prescribed by s.90SM of the Act are to be considered. Insofar as assets may have been dissipated following separation, it may be appropriate (depending on the circumstances of the case) to undertake an arithmetical exercised by which the sum dissipated is taken into account by being included in the calculation of property. Some judges use the phrase “notional add back”[29] whereas others speak of an “asset pool” to which one adds the amount of assets dissipated. By whichever descriptive term, the concept simply involves the enlargement of the asset base by bringing to account amounts spent post-separation.
[29] See Beklar & Beklar [2013] FamCA 327.
Naturally, not every amount that is spent following separation must or even should be brought to account so as to enlarge the base of assets, the interests in which fall to the court to alter. As a general rule, where at separation funds existed and those funds have been used subsequently such that both parties can be seen as having an interest in those funds (by reason of joint contribution to them) then ordinarily those funds serve to enlarge the base of assets of the parties – or, to use a colloquialism, those funds are ‘added back to the pool’ of assets. On the other hand, where funds have been generated after separation from one party’s own endeavours and those funds are used to meet an expense incurred and paid after separation, the value of those funds is usually not ‘added back to the pool’ of assets.
In my judgment, applying s.90SM considerations, the Property C home should be transferred legally and beneficially to the respondent so that registration of her interest under the Transfer of Land Act1958 (Vic) may be done but on the basis that all indebtedness to (omitted) Bank is also met by the respondent. The parties acquired the Property C home from joint funds. They did not apply funds derived from an inheritance or some other windfall gain when they purchased the Property C home. Over the length of their long relationship, each jointly contributed to the reduction of the home mortgage. The annual income of each was essentially equal. No children under 18 years of age are were relevant for the purposes of s.90SM(4) of the Act.
I find that the direct and indirect financial contributions to the acquisition, conservation or improvement of the property during the period of the parties’ relationship were equal. Any improvements to the Property C home since separation occurred after documents were executed for the transfer of the Property C home to the respondent.
I also find that the direct and indirect non-financial contributions to the acquisition, conservation or improvement of the property were equal during the period of the parties’ relationship.
Further, I find that the contribution made by each of the parties to the welfare of the family during the period of their relationship was also equal. In that regard I have rejected the contention that the applicant for six months failed to meet payments for the support of Y.
For the purposes of s.90SM(4)(d) of the Act, I find that the earning capacity of each party is unlikely to be adversely affected by orders transferring the Property C home to the respondent subject to her assuming all liabilities. The s.90SF(3) matters have already been addressed.
In practical terms, by the alteration of property interests made by these orders, the respondent will be entitled to registration as the sole proprietor of the main asset valued at $400,000.00. Without a counterbalancing order in favour the applicant, that would leave him with no assets after a long period with the respondent, a manifestly unjust and inequitable result. Accordingly, the respondent must be responsible for the liabilities that are secured by the Property C home. That means she must be responsible for almost $150,000.00 said to be the amount due under two mortgages in favour of Property C. As the agreed list of assets more accurately showed, the joint indebtedness under the first mortgage was $96,403.00 and the joint indebtedness under the second mortgage was $48,006.00. The respondent must assume liability for payment of those amounts.
So far as the loan described in the agreed list of assets as the business loan, out of $91,911.00 I order the respondent to be liable for half of that sum.

Division of assets

Expressed mathematically, it seems to me the starting point is to calculate the gross and net asset positions.

The assets consist of the Property C home and the proceeds of sale of the business (omitted business). The agreed value of the Property C home is $400,000.00 and the value of (omitted business) is $60,000.00 (excluding GST) on the applicant’s version and $66,000.00 on the respondent’s version. As previously stated, I have factored into the financial adjustment in this case the fact that GST of $6,000.00 is payable upon the sum of $66,000.00, therefore I attribute a net sum of $60,000.00 to (omitted business).
The agreed list of liabilities referred to in paragraph 15(b) herein totals $238,541.00.
The net asset position is therefore $400,000.00 plus $60,000.00, totalling $460,000.00, less the total liabilities of $238,541.00, equalling the amount of $221,459.00. Half of that, being 50% of the total net asset position, is $110,729.50.
However, the respondent was the transferee (albeit informally) of the Property C home, reflective of the fact that the parties intended that the respondent would be the recipient of the Property C home as sole registered proprietor. Of course, the ownership of the Property C home is burdened by debt totalling $236,320.00, being all of the liabilities except the visa card debt.
As the parties have not presently sought to liquidate the Property C home asset in the first instance, the Property C home will be transferred to the respondent, burdened by 100% of the liabilities (minus the visa card debt). That accords with the common sense of transferring the major asset and all the debts accompanying it.
On that basis, the respondent acquires $400,000.00 less $236,320.00 and half of the visa card debt ($1,110.50), being total liabilities of $237,430.50. The respondent’s net position on that arithmetic is $162,569.50.
In order to equitably adjust for the fact that the respondent acquires assets in excess of the amount of $110,729.50, in the application of the foregoing arithmetic, the respondent must pay the applicant the difference between the sums of $162,569.50 and $110,729.50, being $51,840.00.
The position with respect to the proceeds of sale of (omitted business) is that its value must be paid to the applicant, less half of the visa card debt. That means the figures are $60,000.00 less $1,110.50, deriving the sum of $58,889.50. If one adds the sum of $58,889.50 to the amount the respondent must pay him of $51,840.00, then he will receive $110,729.50, as will she.
Those figures produce an equal division of the net assets. I have calculated the above arithmetic on the basis that s.90SF(3) matters have been recognised and that it is just and equitable to divide the assets of the relationship equally in the foregoing manner.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 17 May 2016

[2016] FCCA 1175

17 May 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Injunction

Jurisdiction

Statutory Construction