D and A

[2008] FCWA 30

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: D and A [2008] FCWA 30

CORAM: PENNY J

HEARD: 27 & 28 SEPTEMBER 2007

DELIVERED : 12 MARCH 2008

FILE NO/S: PT 1054 of 1996

BETWEEN: D

Applicant/Husband

AND

A
Respondent/Wife

Catchwords:

Property settlement - s 86 Deed registered 13 years before trial - terms of agreement not complied with - wife claims children have equitable interest in former matrimonial home pursuant to Deed - parties did not comply with terms of Deed - no equitable interest created in favour of children - entirety of former matrimonial home available for distribution between parties

Legislation:

Family Law Act 1975 - s 79, s 86, s 88(1)

Category: Not Reportable

Representation:

Counsel:

Applicant: Dr A Dickey QC

Respondent: Mr R Hooper

Solicitors:

Applicant: Paterson & Dowding

Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

Cahill and Cahill (2006) FLC 93-253

Craven v Official Trustee in Bankruptcy (Unreported, Supreme Court of New South Wales, Needham AJ, 26 July 1991)
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Anstis, In re; Chetwynd v Morgan (1986) 31 Ch D 596

In the Official Trustee in Bankruptcy v Mateo (2003) FLC 93-128

1The parties in these proceedings separated for the first time in 1994, then reconciled for a short time, and finally separated in 1995. The following year they entered into an agreement pursuant to s 86 of the Family Law Act 1975. By that Deed the husband and wife purported to come to an agreement as to the manner in which their assets, in particular [the former matrimonial home] and [a rental property] which was tenanted , would be divided.

2They agreed the former matrimonial home would be transferred, one half to the wife and the other half to the three children of the marriage. The wife and children were to remain living in the former matrimonial home and the wife was to be responsible for the outgoings on that property. The [rental property] was to be sold and the proceeds, after meeting named expenses, were to be divided equally between the husband and wife.

3The terms of the agreement were not complied with by the parties. The wife and two children remain residing in the former matrimonial home. The property was never transferred into the children’s names, but remained in the joint names of the husband and the wife. The [rental property] was never sold. The wife continued to manage the property, tenant it, and retain the funds from the rent, as well as meet the outgoings and mortgage payments in respect of that property.

4In 2006 the husband commenced proceedings pursuant to s 79 of the Family Law Act 1975 seeking an alteration of property interests. In his application he sought that both properties be sold and the parties’ assets and liabilities be divided so that they each receive 50% of them. At trial the husband's position had changed. It was his position that [the former matrimonial home] should be transferred to the wife and that the [rental property] should be transferred to him, and there be an adjustment so that the parties share the assets and liabilities equally.

5The wife was initially unrepresented and sought orders “that the spirit of the s 86 Deed registered with the Family Court on 7 February 1996… be formalised and its intent finalised forthwith”. Having sought this, however, she then sought an order that the husband transfer the former matrimonial home to her. She sought further orders that [the rental property] be sold and that the husband receive 20% of the net proceeds, the wife 20% and each of the children to receive 20% of the proceeds.

6At trial the wife sought a declaration that she and the husband hold the [former matrimonial home] upon the terms set out in paragraphs 1, 2 and 3 of the Deed dated 2 February 1996. She sought further orders that the husband and wife transfer their interest in [the former matrimonial home] to the wife as 50% owner and the children as 50% owners as tenants in common. In the alternative she sought other orders in relation to property settlement.

7Before I can determine the substantive issue, which is the manner in which the parties’ assets should be divided, I must determine whether I should make the declaration as sought by the wife which would result in an order that the children own 50% of [the former matrimonial home], valued for the purpose of this hearing at $635,000.

Children’s rights under the Deed

8After the commencement of the proceedings by the husband, the children of the marriage [P], now aged 29, [D], now aged 28 and [M], now aged 26, were given notice of the husband’s claim to an interest in the entirety of [the former matrimonial home]. On the date of the trial the children were represented and sought, for the first time, to intervene in the proceedings. The purpose of their intervention was to support their mother’s claim that a declaration should be made that the children were beneficial owners of the former matrimonial home to the extent of 50%. I determined that if the children wished to intervene the hearings should be adjourned to enable them to properly put their case before the Court and to give proper notice, particularly to the husband.

9The children, through their counsel, decided that they would not seek leave to intervene. Despite this I gave the children’s counsel leave to make final submissions on behalf of the children, which he did.

The effect of the Deed

10The s 86 Deed was signed by the parties on 2 February 1996 and registered in the Family Court on 14 February 1996. Pursuant to s 88(1) of the Family Law Act 1975 upon registration in a Court it may be enforced as if it were an order of that court.

11Until the husband filed his application for alteration of property interests, neither the husband nor the wife had sought to enforce the terms of the s 86 Deed. The wife in her Form 1A, while seeking to have “the spirit” of the s 86 Deed “formalised” then sought orders inconsistent with that Deed. At trial she sought a declaration that the husband and wife hold [the former matrimonial home] on trust in terms set out in paragraphs 1, 2 and 3 of the Deed.

12The paragraphs of the Deed the wife relies on to seek a declaration that she and the husband hold the [the former matrimonial home] property on trust for the children are as follows:

“1.The wife and children shall be entitled to exclusively occupy and enjoy the marital home and the furniture and contents therein and title to the marital home shall be transferred and registered in the name of [the wife], one half share, and the three children [P], [D] and [M], the other half share, asowners [sic].

1.1The wife shall assume the mortgage repayments on the marital home as and when the same fall due after the title to it has been transferred and registered in her name and the three children. The wife has been meting the mortgage repayments on the marital home since November 1994 up to January 1996.

1.2The marital home shall be sold if the wife remarries or enters into a defacto relationship with the opposite sex on a genuine domestic basis for more than three months or the wife ceases to occupy the marital home or when all the children leave the home to have their own.

1.3The wife shall assume payment of rates and insurance premiums on the marital home and contents thereof and the cost of maintenance and upkeep of the same.

2.0Upon the wife ceasing to be entitled to exclusively occupy the marital home, the marital home shall forthwith be placed upon the market for sale by private treaty and shall be retained thereon until sold and the proceeds of the sale shall be disbursed in the following manner:

2.1in the payment of commission fees and costs of sale after usual conveyancing adjustments for rates;

2.2in the discharge of the [the former matrimonial home] mortgage; and

2.3the balance proceeds, one half to the wife, and the other half to the children [P], [D] and [M] as tenants in common in equal shares.

3.0In the event of any children being under the age of 21 years on the settlement of the sale of the marital home, their share of the proceeds shall be deposited into an interest bearing trust account in the joint names of the parties, and held by the parties UPON TRUST for the said children to be released to each children as and when each of the children attain the age of 21 years.”

13The wife’s position is that the terms of the Deed give the children an equitable interest in the land such that the husband and wife hold a 50% interest in the former matrimonial home on trust for the children. The wife says that such a equitable interest can be enforced and that the parties should be ordered to transfer a 50% interest in the [the former matrimonial home] property to the children.

14In support of this proposition the wife’s counsel relies on the decision In theOfficial Trustee in Bankruptcy v Mateo (2003) FLC 93-128. In that matter the Full Court of the Federal Court considered the effect of a s 79 order whereby it was agreed that the husband's interest in a property would be transferred to the wife. Wilcox J referred to the matter of Craven v Official Trustee in Bankruptcy (Unreported, Supreme Court of New South Wales, Needham AJ, 26 July 1991). In that matter, as a result of a Family Court order, the wife was to receive the whole of the proceeds of sale of the former matrimonial home. Between the making of that order and the sale of the home, the husband was declared bankrupt. In Craven Needham AJ stated:

“The orders in the present case did not merely declare that, upon sale, the plaintiff was to have the proceeds less the encumbrance; they ordered that a sale take place forthwith and that the proceeds of sale, after payment of the mortgage and any other liabilities, should go to the plaintiff. In my opinion, such an order creates an equitable interest in the land which could be enforced just as a contract for sale could be enforced.”

15The husband’s counsel says that the terms of paragraph 1 do not disclose a disposition pursuant to the Deed, but only an agreement by the husband to dispose of his interest in the property. The property has never been transferred into the children’s names. He says that this lack of transfer of the property as allowed for in the Deed, is fatal now to the declaration sought by the wife.

16In support of that proposition he relies on the decision in Anstis, In re; Chetwynd v Morgan (1886) 31 Ch D 596. In that matter there was a dispute as to whether a property should be treated as subject to the trusts of a marriage agreement when Mrs Anstis died. Mrs Anstis had the option, pursuant to powers conferred by her in a Deed, to make a particular property (the Stonehouse property) subject to the trusts of the marriage settlement. Mrs Anstis never exercised the powers conferred by the Deed prior to her death. It was argued in that matter that equity should look on that as done which ought to be done. But Lindley LJ stated at 605:

“but this rule, although usually expressed in general terms, is by no means universally true. Where the obligation to do what ought to be done is not an absolute duty, but only an obligation arising from contract, that which ought to be done is only treated as done in favour of some person entitled to enforce the contract as against the person liable to perform it.”

17He went on to say at 606:

“The Stonehouse property not then being actually Mrs. Anstis’s property when she died, and there being after her husband’s death no one but herself entitled to treat it as hers, the Appellant as her heir-at-law has no right to it, unless he is entitled to insist that she ought to be treated as having done that which she in fact never did, namely, as having exercised her power under the deed of 1873 so as to subject the Stonehouse property to the trusts of the marriage settlement of 1853. But the Appellant appears to me to have no such right.”

18Since 1996 the wife has failed to take any steps to have the former matrimonial home transferred as to 50% to the children of the marriage. In 1996 a transfer was prepared, it appears, on behalf of the husband, transferring the entirety of the [the former matrimonial home] property to the wife. The transfer was signed by the husband. The wife obtained advice in 2004 as to the form the transfer should take to ensure the transfer of the husband’s interest to the children. The form prepared by the husband was incorrect. Despite obtaining the advice, the wife never completed the forms to effect the transfer.

19More importantly, apart from the fact the parties did nothing to give effect to the terms of the Deed, the Deed itself is contradictory and there are clauses which would suggest that the children’s interest was conditional upon certain factors. Paragraph 2 states that if the wife ceases to be entitled to occupy the marital home, then it must be sold. There is no evidence of the children agreeing to such a term in the Deed. Further, paragraph 13 states:

“In the event that the husband and the wife become reconciled prior to any decree dissolving their marriage being made and pursuant to such reconciliation live together for a period in excess of 3 months, then the provision of this Deed shall be void and of no effect.”

20At the time of hearing the parties had not dissolved their marriage. In addition, paragraphs 11 and 12 acknowledge that the Section 86 Deed was not in substitution of the parties’ rights to alteration of spousal maintenance and maintenance agreements under Part VIII of the Family Law Act 1975.

21The s 86 Deed provides not only for the transfer of a 50% interest in the marital home at to the children, but also provides for [the rental property] to be placed upon the market for sale and the proceeds divided pursuant to paragraphs 4.1 to 4.4. This property was never sold and the wife has retained funds paid pursuant to the rental agreements on that property.

22In my view, it is not appropriate to make a declaration that the parties hold [the former marital home] on trust for the children because:

•The parties have never given effect to the terms of the Deed so that even if an interest in favour of the children was created by paragraph 1, the wife, who now seeks to enforce the Deed, has never done anything to effect a transfer to the children’s names. In my view, it is too late now, after the husband has commenced proceedings pursuant to Part VIII of the Family Law Act 1975, for the wife to now seek that the terms of the Deed be put into effect.

•The terms of the Deed are such that there is no certainty that an equitable interest has been created in favour of the children. As set out above there are terms in that agreement inconsistent with their alleged rights created by paragraph 1.

•The s 86 Deed related not only to the transfer of the husband's interest in the marital property to the children, but also related to the sale of [the rental property]. This property was never sold and neither party enforced the terms of the Deed in that regard.

23As stated previously, the children’s counsel was able to make submissions at the end of the trial. He conceded that the children had no standing to enforce the Deed in the Family Court, as they were not parties. It was his view that the appropriate manner for the children to deal with any interest they should have in the former matrimonial home would be to lodge a caveat and seek a declaration in the Supreme Court as to their equitable interest in the property.

24In my view, the entirety of [the former matrimonial home] is an asset of the parties and should be included in the asset pool.

Property settlement

25The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Those steps are:

•identify the value of the assets and liabilities of the parties;

•consider the contributions made by the parties within paragraphs (a) to (c) of s 79(4);

•consider the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(d)-(g); and

•consider whether the order proposed is just and equitable.

The parties’ proposals

26The husband proposes that the net assets of the parties be divided so that they each receive 50%. He seeks to retain [the rental property] and agrees that the wife should retain [the former matrimonial home]. He says that there should be a cash adjustment to ensure that the parties each receive 50% of their assets.

27The wife’s position is that up to the date of separation the parties’ contributions to the marriage were equal. After separation she says that they were 90% in her favour and 10% to the husband. She suggests an overall division of the assets 70% in her favour and 30% to the husband. She agrees that there should be an order that she retain [the former matrimonial home] and that [the rental property] either be transferred to the husband or sold.

Assets and liabilities

28After the evidence the only areas in which there was a dispute between the parties as to their assets and liabilities related to whether the children had an equitable interest in [the former matrimonial home] and whether the wife’s liabilities in the form of loans and debts should be taken into account as liabilities of the parties. I have already determined the issue in relation to [the former matrimonial home]. The liabilities the wife seeks to have taken into account are as follows:

BankWest MasterCard $15,406.00

Coles Myers Credit Card 1,600.00

Loan from wife’s family 8,311.00

Chartered Accountant’s fees 1,000.00

Westpac MasterCard and Amex 19,014.00

$45,331.00

29In the wife’s affidavit sworn 15 June 2007 in paragraphs 103 to 110 the wife sets out the extent of these debts and the purposes for which they were incurred. The parties separated in November 1994, some 13 years before the trial. The liabilities claimed by the wife have been raised by her since then. Both the husband and wife have been responsible for their own expenses and lifestyle after separation.

30The BankWest MasterCard in the sum of $15,406 was taken out by the wife in March 2003. She states she took out this loan to pay out her previous ANZ credit card which had slowly increased over the years. There is no mention of the ANZ credit card at the time the parties entered into the s 86 Deed in February 2005. This debt has been incurred by the wife since separation. She states that she has used the debt to pay expenses including school fees, university fees and normal household expenses. She states the card has also been used for paying for expenses relating to the [the rental property] property.

31Part of the debt accrued on the Westpac MasterCard and the Amex relates to legal fees. Approximately $16,033 has been used for that purpose. I do not intend to add that sum back into the asset pool either as an asset or the debt as a liability.

32The funds the wife received as a result of the loan from a family member were received by her 1996 and 1997. I am not satisfied that this debt needs to be repaid and I do not intend to take it into account as a liability of the parties.

33On the one hand the wife has claimed a contribution on her part to the family and to the accumulation of the parties’ assets as a result of these payments she has made towards the family and towards the maintenance of the parties’ property. On the other hand, she now seeks to have part of the funds paid by her included as a debt of the parties. In my view, given the fact that the parties separated 13 years ago, it is appropriate that they each be liable for their own expenses incurred since that time. These payments will be taken into account as contributions pursuant to the provisions of s 79(4) of the Family Law Act 1975.

34The wife alleged that the husband has an interest in property owned by his de facto, [Ms T]. The properties owned by [Ms T] are registered in her name only and are unencumbered. The husband resides with [Ms T] in one of the properties she owns, but says he has no interest in it and has made no financial contribution to it. There was no evidence that he has. In those circumstances, I am not prepared to find that he has an interest in those properties.

Assets and liabilities at trial

Assets

[The former matrimonial home] $635,000

[The rental property] 380,000

Husband’s [motor vehicle] 4,000

Wife’s [motor vehicle] 13,000

Husband’s Westpac bank account 1,786

Wife’s household contents 1,500

Wife’s ANZ One account 1,741

$1,037,027

Liabilities

Mortgage over [the former matrimonial home] $104,349

Mortgage over [the rental property] 19,222

ANZ overdraft (joint) 9,887

Arrears of council rates on [the former matrimonial home] 2,422

Arrears of council rates on [the rental property] 1,798

$137,678

Net Assets $899,349

Superannuation

Husband’s Westpac superannuation $90,776

Husband’s ING superannuation 8,234

Husband’s Government superannuation 2,279

$101,289

Wife’s Gold State superannuation $151,787

Superannuation

35It will be noted that I have treated the parties’ superannuation entitlements separately from the tangible assets of them, Cahill and Cahill (2006) FLC 93-253. Neither of the parties are seeking a superannuation splitting order and, in my view, it is not appropriate in this matter. This is so given that they appear to have made little contribution to each other’s superannuation as most of it was accrued after the parties separated.

Contributions

Contributions – financial and non-financial until separation

36It is conceded by both parties that their contributions to the accumulation of their assets during the course of the marriage were equal. I agree with this concession and will not go into extensive detail in relation to the contributions, both financial, non-financial and to the family by them during the course of the marriage.

37At the commencement of the parties’ marriage neither had assets of any significance. In November 1980 the husband and wife moved from [overseas] and began living in [the Eastern states]. They moved to Perth in March 1981. When the parties first met [overseas] they were both working; however, the wife had stopped working before the move to Australia and she stayed home to look after the children until August 1985. There are three children of the marriage, [P], born in 1978, [D], born in 1979 and [M], born in February 1982. Upon reaching Australia the husband was in full-time employment. In August 1985 the wife went back to work full-time. The wife also started [studying] part-time for about a year, but did not continue her studies after that time.

38After the parties arrived in Australia they purchased land, [which became the site of the rental property] in December 1983. They built a house on that property and moved into it in March 1984.

39In 1989 the husband and wife purchased a block of land [which was the site of the former matrimonial home] and in 1990 they began constructing a house on that property. In October 1990 they moved into the [former matrimonial home] and rented the [the rental/investment property]. The rent from the tenants in that property assisted with the payment of the mortgage.

40These properties were still in the possession of the parties when they separated and were the subject of the provisions of the s 86 Deed.

41Before the parties finally separated they separated in mid-1994. The husband moved out of [the former matrimonial home] and during the course of the separation was retrenched from his employment. He received a retrenchment package of $21,000. The parties reconciled shortly thereafter and the husband placed the $21,000 into a joint account. $10,000 was used to clear a joint overdraft. The parties finally separated in November 1994 and the husband received approximately $2,000, which he used to pay the bond on a flat and buy some items of furniture.

42Up to separation the husband had been the primary income earner for the family as well as contributing a lump sum of $21,000 by way of his retrenchment payment. The wife had also earned an income and in addition was the primary care-giver for the children.

Contribution post separation

43After the parties separated [P] and [M] resided with the wife and [D] resided with the husband. They were each solely responsible for the expenses of the children in their care. In 1997 or 1998 [D] returned to reside with the wife. In that time the wife was mainly responsible for all of the children’s living expenses. The husband says that he made a regular contribution of between $50 and $100 per week for [M]. He says he paid these funds in cash and he paid her the money most weeks when she was at university. In general, I found the husband not to be a convincing witness, especially in relation to his evidence on his financial affairs. In my view, it is highly unlikely that he supported [M] to the extent that he stated that he did.

44It is agreed that after separation, however, he did pay for [M] to go on a trip [overseas] and contributed towards a trip for her to [the Eastern states]. He also contributed to [M]’s school fees, otherwise the wife was responsible for the care of the children both in a physical and financial sense.

45The husband confirmed that at the time of separation he was working for [a firm]. Immediately upon separation he no longer deposited his income into the joint account. From that time on the parties were in receipt of income earned by them and solely responsible for their own expenses. The wife was also responsible for servicing the mortgage and other expenses relating to the former matrimonial home, and in relation to the [the rental property]. It is to be remembered, however, that the husband and wife agreed that the [the rental property] would be sold forthwith upon them entering into the s 86 Deed. The property was never sold and the husband did not receive his share of the proceeds of sale. Instead, the wife retained the property, received the rentals, paid the mortgage and maintenance payments on it. At no time did she account to the husband for any of the rent which she received. It appears that it is only recently that she has completed taxation returns for the years 2000 to the end of the financial year 2005.

46While the wife received all of the rental income from the [the rental property], for taxation purposes, she has been only liable to pay tax on half of the profit. The husband has had to pay tax on rent received from the rental property, even though he never received it. While there has been times when the [the rental property] resulted in a loss to the wife, since 2000, there have been profits incurred by way of the rental. In addition, the husband has had no access to his capital and has not been in a position to purchase another home for himself.

47The husband was questioned at length about his income, particularly since 2000. The husband lost his job in the second half of 2001. During 2002 his taxable income was $8,016. For 2003 his taxable income totalled $6,921. In 2004 his taxable income was $14,998. During this period where the husband received little income, he worked for a period for [a firm]. He stated he had odd jobs at times, but declared the income received from those jobs to the Australian Tax Office. He stated that during the period 2002 and 2003 he was in receipt of Social Security for some time. He says during this time he was not living with his de facto, [Ms T].

48The husband was questioned in particular about a number of significant deposits into his bank account during the period 2001 to 2004. He was questioned about a lump sum payment in January 2003 of $3,200. The husband was not sure of the origins of this deposit. He states that on occasions he uses his credit card to buy items for other people. It may have been that people were depositing money into his account to repay him for the credit card payments.

49On 31 July 2003 there was a deposit for $6,085. The husband stated he may have sold a car which could have accounted for this sum, but later in his evidence seemed unsure. In March 2004 the sum of $6,963 was deposited into his account. The husband was unable to say where these sums came from. On 18 May 2004 there was a further deposit of $7,081. Other than to confirm that this sum did not come from a payment for odd jobs, the husband was unable to say where the money came from.

50The husband disputes that he was, during this period, being supported by [Ms T]. I found the husband’s evidence in relation to the source of the funds received by him very unsatisfactory. I do not know what the source of his income was over the years.

51The wife says that her contributions post-separation have been significantly greater than the husband’s as she has single-handedly met all the mortgage payments, maintenance and any other outgoings relating to both [the former matrimonial home] and the [the rental property] , as well as the children’s maintenance. I accept that that is the case; however, the wife has had sole access to the major assets of the parties since separation. She has lived in the [the former matrimonial home] property and she has been in receipt of the income from [the rental property] to the exclusion of the husband. She determined she would not comply with the s 86 Deed either by way of selling [the rental property] or by way of transferring 50% of her interest in the [former matrimonial home] to the children.

Conclusions on contributions

52I am satisfied the wife has made a greater contribution than the husband to the accumulation of the parties’ assets, both by way of non-financial contributions towards the children and by way of financial contributions since separation. If the parties had complied with the Deed and [the rental property] was sold, and 50% of [the former matrimonial home] was transferred to the children, there would not be the significant asset pool that now exists for distribution between the parties. On the other hand, as I have stated previously, the husband's capital has been tied up for 13 years in properties where the wife has had the advantage, in relation to [the former matrimonial home] , of residing in it and in relation to [the rental property], of receiving the entirety of the rental from it.

53I am satisfied on the basis of contributions alone there should be an apportionment in favour of the wife. The property of the parties should be divided between them, taking into account contributions alone, in the sum of 62.5% to the wife and 37.5% to the husband.

Section 75(2) factors

54In my view, there should not be a further apportionment of the assets to take into account s 75(2) factors.

55The wife is in secure full-time employment and earns around $72,000 per year. The husband is now back in employment and earns $45,800. The husband resides with [Ms T]. His only contribution to that household is to provide food for himself, [Ms T] and [Ms T]’s daughter, and pay for occasional dinners. [Ms T] works as a part-time [beautician] from home. She owns two unencumbered properties, one purchased for $420,000.

56There is no indication that the husband intends to cease residing with [Ms T]. If this is the case and he takes [the rental property] as part of the property settlement, he will receive an income from that property of $175 per week. The wife, on the other hand, will continue to reside in [the former matrimonial home].

57Both parties are in average health.

58The superannuation of the parties has not been taken into account as an asset for the purposes of this hearing. The value of the wife’s superannuation is approximately $50,000 greater than the husband's. Despite this fact, I do not intend to make an allowance to the husband to take into account this factor. I have stated previously I have serious reservations about the husband's real income between 2000 and 2004. In my view, it is likely that it was significantly greater than that declared by him. If the husband has opted to received some cash payments and as a result has not been paid superannuation, that is a choice made by him. In addition, the wife has chosen to work very hard and maintain the two properties. The husband had little in the way of commitments and did not put himself under the same sort of pressure as the wife to ensure that he was in full-time employment.

Just and equitable

59A division of the assets so that the wife receives 62.5% and the husband 37.5% results in the wife retaining assets valued at $562,093 and the husband valued at $337,256. The wife will retain the following assets:

[The former matrimonial home] $635,000

[Motor vehicle] 13,000

Wife’s household contents 1,500

Wife’s ANZ One Account 1,741

$651,241

Liabilities:

Mortgage on [the former matrimonial home] $104,349

Council rates arrears, [the former matrimonial home] 2,422

ANZ overdraft (joint) 9,887 $116,658

$534,583

The husband will retain the following assets:

[The rental property] $380,000

[Motor vehicle] 4,000

Westpac Account 1,786

$385,786

Liabilities:

Mortgage on [the rental property] $19,222

Council rates on [the rental property] 1,798 $21,020

$364,766

Less cash paid to wife 27,510

$337,256

60In addition, they will both retain their own superannuation. In my opinion, such a result is just and equitable in the circumstances.

I certify that the preceding [60] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate