Dalry and Dalry - [2007] FMCAfam 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DALRY & DALRY

[2007] FMCAfam 171

FAMILY LAW – Property – marriage of approximately twenty-three years in duration – children of marriage aged 23 and 20 – major asset cane farm acquired from husband’s parents in part through donation and in part through subsidised purchase – weight to be given to such contributions – weight to be given to home making and parenting contributions – valuation issues – cane farm valued as both a farming concern and as “life style” blocks – highest and best use – assessment of s.75(2) factors – just and equitable.

Family Law Act 1975, ss,79, 75(2)

Commonwealth v Milledge (1953) 90CLR 157
Spencer v Commonwealth (1907) 5 CLR 418
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
TWN & PAQ [2005] FamCA 677
Pierce & Pierce [1999] FLC 92-844
Russell v Russell (1999) FamCA 187
D & D [2003] FamCA 473
Smith & Smith (1991) FLC 92-261
Waters & Jurek (1995) FLC 92-635
GVR v VAR [2006] FamCA 894
Rosati v Rosati (1998) FLC 92-804
Gosper & Gosper (1987) FLC 91-818
Kessey & Kessey (1994) FLC 92-495

Applicant:

MR DALRY

Respondent:

MS DALRY

File No:

TVM 2169 of 2006

Delivered on:

2 April 2007

Delivered at:

Adelaide

Hearing dates:

20 & 21 February 2007

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Pagani

Solicitors for the Applicant:

J Hamilton & Associates

Counsel for the Respondent:

Mrs Pack SC

Solicitors for the Respondent:

M.S. Kelly & Co

ORDERS

The husband pay to the wife the sum of $175,000.00 within sixty (60) days of the date of these orders.
Concurrently with order 1 hereof the wife transfer to the husband all her right, title and interest in the cane farm being Lot 1 on Registered Plan 71xxx and Lots 5 and 6 on Registered Plan 73xxx.
The husband retain all the plant and equipment associated with the cane farm referred to in order 2 hereof and which is currently in his possession.
The Holden motor vehicle be sold as soon as is practicable and the husband take all necessary steps to place the aforesaid vehicle on the market at a price to be agreed between the parties and after the selling costs have been paid, the proceeds be divided so that the husband receive 70% of the proceeds and the wife receives 30%.
The husband indemnify the wife and keep her forever indemnified in respect of all debts owed by the parties to the National Australia Bank and to Mrs D Senior (the husband’s mother).
Concurrently with order 1 hereof the husband transfer to the wife, at the husband’s expense, all his interest in the Telstra shares and AMP shares currently jointly owned by the parties.
Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age working future provides the conditions for payment out of such entitlements.
(b)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.
The parties have liberty to apply for consequential orders in the event the husband is unable to comply with order 1 hereof.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

TVM 2169 of 2006

MR DALRY

Applicant

And

MS DALRY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the division of matrimonial property. The applicant is MR DALRY. I will refer to him as “the husband”. The respondent to the application is MS DALRY. I will refer to her as “the wife”.
The husband is 50 years of age. The wife is 46. They married in 1981 and separated on 4 November 2004. The marriage produced two children, J now 23 and K now 20 years of age. Clearly the marriage between the parties was a long and significant one for them both. Now, given the extent and configuration of their total matrimonial property, how that property is to be divided between them poses significant problems for the court and for the parties themselves, particularly how they each choose to lead their lives in the future.
To a certain extent it is case about lifestyle and the different choices the parties have made about the sort of life they wish to lead in the future. The husband is a sugar cane farmer. His forebears were cane farms. The rural based lifestyle of a cane farmer, with all its vicissitudes, related to weather and markets, is the life he wishes to pursue for the remainder of his life.
During the twenty odd years of the marriage, the wife was a partner in a cane farm business operated with the husband. On separation, she left the cane farm, which was also the parties’ matrimonial home, to live in town in Mackay. She can see no economic future in cane farming and believes that the parties have no realistic option but to pursue financial incentives offered by the Commonwealth Government to cane farmers to quit the sugar industry.
At the outset of their marriage, the block on which the parties built their matrimonial home was excised from a cane farm owned by Mr and Mrs D Senior, the husband’s parents, at little cost to the parties. Mr and Mrs D Senior also provided the kit house which formed the basis of the home occupied by the parties during their marriage.
The parties’ most significant asset is their cane farm. The land concerned is contained in three separate titles. There is a significant dispute between the parties regarding the worth of the cane farm. From the husband’s perspective, the land should be valued in a total sense, in regards to its current use – as a cane farm. At the end of the day, he wishes to retain the property for this purpose and to continue to operate it as a cane farm. Accordingly, from his position, the only fair way to value the property is as it is and how he wishes it to remain, as a cane farm.
From the wife’s perspective, she believes the individual parcels of land have potential to be sold separately to purchasers wishing to use them as hobby farms or “lifestyle” blocks. If the three pieces of land concerned are valued on this basis, in total, they reach a value significantly higher than if they are valued as a sugar cane farm. Clearly, if the wife’s mode of valuation is preferred, it will have consequences for the sum of money the husband will have to pay to the wife to acquire her interest in the cane farm and the viability of his plans to continue working as a cane farmer.
In part, the cane farm was acquired by the parties through acts of generosity of the husband’s parents, at the outset and during the course of the parties’ marriage. Mr and Mrs D Senior wished to keep their cane farm in their family and when Mr D Senior fell ill, the husband was willing to take it on. The husband has been involved with working on the farm, frequently for no remuneration, for as long as he can remember.
As a result, it was sold to the parties at a discounted rate to reflect the work the husband had done on the farm up to that stage and in order to fulfil Mr and Mrs D Senior’s wish that it remain with family members. The purchase price was to be paid in instalments, attracting no interest. The parties now disagree regarding the significance to be given to these contributions and the extent to which they can be regarded as favouring the husband.
There seems to be no dispute between the parties that, during their long marriage, they each contributed, in their respective spheres of influence in the family, to the full extent of their capacities. Undoubtedly both worked long and hard during their marriage. Accordingly, it is regrettable that this division of their scarce resources occasions such difficulty and is unlikely to provide either of them with a significant base on which to plan for retirement.
In this regard, the parties have different views as to their prospective needs. The husband suffers from a condition known as rheumatoid vasculitis. It is a serious auto-immune disease. In 2002, he suffered a transient ischaemic attack which resulted from internal cranial bleeding. This occasioned right-sided weakness. The husband is now required to take a wide range of medication.
As a result of his condition, the husband has difficulty standing for lengthy periods of time, cannot be exposed to excessive sunlight and has a limited capacity to undertake heavy manual labour. It is the opinion of his treating general medical practitioner that the husband, due to his condition, will have to retire earlier from the workforce than he otherwise might have done. The doctor concerned, Dr H believes it is likely the husband will retire in his late fifties.
Although the wife enjoys good health, she has no specific skills to speak of. Currently, she is working in a part-time capacity at a retail outlet in Mackay. Her income is modest. As a result, it is the wife’s position that it is likely to be difficult for her to support herself financially in future.
Accordingly, the parties have very different views as to how their total matrimonial property is to be divided between them, in percentage terms. It is the husband’s position that the various factors involved greatly favour him. He asserts that the parties’ property should be divided 70/30% in his favour. On the other hand, it is the wife’s position that the various factors concerned favour her. She asserts that the parties’ matrimonial property should be divided 55/45% in her favour.
These proceedings are designed to resolve the various disputes between the parties and finalise their financial relationship with one another.

Documents relied upon

The husband is the applicant in these proceedings, which he commenced on 25 May 2006. At that stage, he sought the following order only:
“That matrimonial property be apportioned 70% to the husband and 30% to the wife”.
As indicated above, this remains his position. However, in a case outline document, filed on his behalf on 27 October 2006, he has provided details as to how he proposes this outcome should be achieved. It is as follows:
·The wife transfer to him all her interest in the three pieces of land which make up the cane farm;
·The wife transfer to him all her interest in the farming equipment and plant on the farm, together with her interest in a Harley Davidson motorcycle, a motorcycle trailer, a Falcon motor vehicle and the farm Hi-Lux ute;
·The husband retain the furniture and chattels which he currently holds and the wife retain the furniture and chattels which she currently holds;
·The parties’ shares in AMP and Telstra be divided equally between them;
·The parties retain superannuation interests standing in their own names respectively;
·The debt which the parties owe to the husband’s mother be apportioned as to two-thirds to the husband and one-third to the wife;
·The husband transfer to the wife all his interest in the Toyota dual cab motor vehicle;
·After the consequences of these various transactions have been calculated in arithmetical terms, he proposes that he pay the wife a sum calculated to be 30% of the parties’ assets.
·Obviously, this sum is predicated on the basis that it includes a sum which relates to the value of the cane farm, in its present form, as a cane farm, rather than to its potential value as “life style” blocks.
In support of his application for property orders, the husband relies on the following documents:
i)An affidavit of himself filed 9 October 2006;
ii)A statement of his financial circumstances filed 9 October 2006;
iii)An affidavit of his mother, Mrs D Senior filed 9 October 2006;
iv)An affidavit of his brother, T filed 9 October 2006;
v)An affidavit of his doctor, Dr H filed 9 October 2006.
The wife responded to the application on 21 August 2006. At that stage, she sought the following order only:
“That the matrimonial property be apportioned 55% to the wife and 45% to the husband.”
As indicated above, this remains her position. However, in a case outline document filed shortly prior to the commencement of the proceedings, she provided details as to how she proposed this outcome should be achieved. Essentially it is as follows:
·The wife transfer to the husband all her interest in the three blocks of land comprising the cane farm, the farms plant and equipment, the furniture in the husband’s possession, the parties jointly owned shares in AMP and Telstra, the motorcycle, trailer and a number of other motor vehicles;
·The husband transfer to the wife all his interests in the Toyota dual cab motor vehicle;
·The parties each retain the superannuation currently standing in their respective names;
·The husband indemnify the wife in respect of the debts owed by the parties to the husband’s mother and the National Australia Bank;
·After the arithmetical calculations involved in these various transactions have been calculated, it is the wife’s position that she should receive a sum equal to 55% of the parties’ assets. Again, this calculation is predicated on the basis of the value ascribed to the three pieces of land, if they are sold individually.
It should be noted that the wife has not specifically sought an order that any of the pieces of land be sold in order to ensure the payment to her of the sum of money she seeks. From the husband’s perspective this is significant. He has no desire to sell the property. He wishes to retain the property and continue to utilise it as a cane farm. Accordingly, he has not seen fit to investigate the costs which would be associated with any sale of the property. These costs include agent’s commission; selling costs; GST; and capital gains tax.
By necessary implication, he suggests that the wife is being disingenuous in not seeking any formal orders for the sale of the property. It is his position that, if the wife had sought such an order, it would be incumbent upon her to provide evidence as to the likely costs involved in the realisation of the property. As she has not done so, he argues that the wife should be debarred from obtaining such an order, effectively by default, given that the court has no way of knowing what the practical effect of such an order would be.
In support of her response, the wife relies upon the following documents:
i)An affidavit of herself filed on 21 August 2006;
ii)A further affidavit of herself filed on 16 October 2006;
iii)A statement of her financial circumstances filed on 21 August 2006.
The proceedings were commenced at the Family Court in Townsville. On 2 June 2006, the proceedings were transferred to this court. On 28 August 2006, Slack FM fixed the proceedings for hearing at Mackay. Around this time, the parties agreed to engage a common expert to value the cane farm. The expert on whom they agreed was Ms L. As a result, an affidavit of Ms L was filed by the wife’s solicitors on 30 January 2007. Both parties rely on Ms L’s affidavit but in different ways.
In addition, during the proceedings before me on 21 February 2007 a number of documents were tendered into evidence. The parties themselves, Mrs D Senior and Ms L were required to attend at court for cross examination. T and Dr H were not required for cross examination by the wife. The affidavits outlined above, the documents tendered into evidence and the oral evidence of the witnesses referred to above, constitute the evidence on which the decision of the court is based.

The legal principles to be applied and the issues in the case

The process to be followed for the division of the parties’ property is well established by law.[1] The relevant legal principles are primarily contained in ss.79 and 75(2) of the Family Law Act 1975. I am required to follow a number of specific steps.
[1] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[2] To the parties’ credit, they have been able to agree upon the valuation of the vast majority of their property. However, as has previously been indicated, there exists considerable controversy between them in the following areas:
·The valuation of the cane farm has provided two figures. Firstly, if valued as a farming aggregation (the husband’s preference) Ms L values it at $415,000.00. Secondly, if valued as three separate titles, (the wife’s preference) Ms L ascribes a total value of $639,000.00;
·The question of which value is to be adopted turns on the nature of the properties involved and which is the preferable valuation methodology, particularly what is the “highest and best use” of the land. The difference between the two figures - $224,000.00 is significant, given the overall extent of the pool;
·The husband places great significance on the absence of any details of the costs of sale of any or all of the blocks of land concerned;
·In April 2004, the Commonwealth Government announced a scheme to assist cane growers to leave the sugar industry. It currently offers what it terms a re-establishment grant, of up to $50,000, to cane farmers who sell or otherwise divest themselves of their farming assets. The wife has applied, as yet unsuccessfully, for such a grant on the basis that she has already or will, on the conclusion of these proceedings, have relinquished her interest in the cane farm to the husband. As a result of these matters, an issue has arisen whether this potential grant is to be regarded as a financial resource of the parties and so available to be apportioned between them in some way.
[2] See Wardman & Hudson (1978) FLC 90-466
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.” It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
This second step occasions controversy between the parties in the following major areas:
·In 1980, shortly prior to their marriage, the husband’s parents donated to the parties the kit home, which subsequently became their matrimonial home;
·In 1983 the husband’s parents donated to the parties the one acre parcel of land on which this property had been constructed. They also paid for some of the legal costs which related to the subdivision;
·In August of 1998, the parties purchased the cane farm from Mr and Mrs D Senior for the sum of $50,000.00. This was less than half of its value at the time. As has previously been indicated, the reduction in price was in recognition of unpaid work the husband had done on the property and the desire of the husband’s family to keep the property in the Dalry family;
·One of the central issues in this case is the weight which should be given to these various contributions. In particular, in the overall context of this case, are they contributions which “merit special recognition”;[3]
·Mr and Mrs D Senior did not require immediate payment of the purchase price of $50,000.00 for the cane farm. Rather, it was agreed that the price would be paid off in instalments of $3,000.00 to be paid annually. These payments did not attract interest. On occasions, particularly in times of poor seasons, payment of the sum was waived. Again, the issue arises as to the significance to be given to these matters and whether they are to be regarded as contributions made on behalf of the husband;
·What is the significance of additions which were made to the parties’ former matrimonial home during the course of the marriage;
·Issues also arise as to the parties’ post separation contributions. The wife asserts that she is entitled to some weighting in her favour because the husband has retained the proceeds of the sugar cane farm and has been able to live in the former family home rent free, whereas she has had to rent accommodation;
·Both parties assert that they have provided financial assistance for their children, particularly J, who suffers from chronic arthritis;
·Issues also arise regarding the contribution of the parties, if any, to the potential financial resource which is represented by the Sugar Industry Reform Program grant.
[3] See Pierce & Pierce [1999] FLC 92-844 at 85,811

The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in s.75(2) of the Family Law Act 1975. Pursuant to s.75(2) (o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. In the main, s.75(2) deals with the prospective needs of the parties. This area too, occasions controversy between the parties in the following areas:
·The wife submits that she has a lesser income earning capacity than the husband;
·On the other hand, the husband points to his ill health and the fact that he is likely to be compelled to retire prematurely.
Finally in determining what order the court should make under s.79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[4]
[4] See Russell v Russell (1999) FamCA 187
In following the various steps required of me pursuant to s.79 of the Family Law Act 1975, I bear in mind what was said by the Full Court in D and D[5] as follows:
“The task of the court in proceedings under s 79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large, marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary to the wishes of the other. But there can be no certain answer to how much that should be when applying s.79 principles.”
[5] D & D [2003] FamCA 473 at paragraph 49
The “overriding requirement” of s.79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[6] or of equalisation of assets or financial resources.
[6]See Waters & Jurek (1995) FLC 92-635 at 82,375
At the outset, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation. The task, set out for me in this case, requires me to balance and compare contributions which are by their nature different. The discretion I have is a wide one.

The evidence

This is not a case which turns on credit. I found both parties to be honest witnesses, who attempted to give a true account of their relationship and financial circumstances, as they each saw it. Inevitably there were differences in emphasis in the evidence given by each of the parties. Witnesses’ recollections of the specific details of events are liable to fade over time and when those events need to be reconstructed, for the sake of adversarial proceedings such as these, it is only to be expected that such a subsequent reconstruction should favour the party making it. In this case, there was nothing sinister about the differences, which were few, in the respective testimonies of the husband and wife. Similarly, there was nothing in the evidence of any of the other witnesses concerned, which caused me to doubt the veracity of their evidence.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of the witnesses concerned and consideration of the affidavit material and other documents tendered in the case. In what follows, statements of fact constitute findings of fact.

(a) Background

The husband was born in Mackay in 1956. The wife was also born in Mackay in 1961. They married at M in January 1981. They did not cohabit prior to their marriage. The parties agree they separated in the latter part of 2004. Their marriage was dissolved on 14 May 2006. At separation the wife left the former matrimonial home, situated at the cane farm near P. She has been living in rented accommodation in Mackay ever since.
The parties have two children – J born in 1983 and K born in 1986. J is an apprentice chef. She is currently living with the wife in Mackay. K is studying accounting at university, whilst she works full time. She is financially independent. Unfortunately, J suffers from chronic arthritis. Neither child was living with the parties at separation. However, there are disputes between them as to the level of financial assistance provided by each of them to the children in the period since separation.
When the parties married, the husband was employed as a truck driver and the wife was employed as a shop assistant. Neither had substantial assets or savings. Each had a car and the husband had a motorcycle. The cars were subsequently traded in to purchase a single family car. The wife ceased paid employment prior to J’s birth. The husband acknowledges the wife was “the primary care provider of the children and performed the majority of home maker duties”,[7] during the marriage.
[7] See husband’s affidavit at paragraph 7.
The wife did not return to the paid workforce until 2003, although she did breed cats at home. This seems to have been more of a hobby than a financial enterprise. The husband continued driving trucks during the first portion of the parties’ marriage. He worked hard, often doing the Mackay/Brisbane run, which required him to be away from home overnight. In 1984, he commenced driving buses for S Bus Service. This position allowed him to be at home more often but still entailed some time away from home, particularly when he was driving school students on trips away. The husband continued with this employment until he fell ill with rheumatoid vasculitis in 1994.
The husband was unable to work for approximately 12 months due to his illness. He utilised his accumulated sick leave and long service leave to support the family during this period. Thereafter, in about 1995, he obtained part-time work carting cane. In 1997, he commenced his own business carting cane on his own account. This continued for approximately 5 years. Thereafter, he had a number of positions driving trucks and doing labouring work.
In 2003, the wife worked for a few months at a factory. In April of 2004, she commenced work as a shop assistant in Mackay. Accordingly, during the majority of the parties’ marriage, they divided their family responsibilities along conventional lines. The husband was the family’s main breadwinner and the wife provided the vast majority of care for the parties’ two children and undertook most of the household tasks. However, these matters must be considered in the context that the parties were also primarily producers, who were living on a working cane farm during their marriage.

(b) The cane farm

Undoubtedly, the husband has a close emotional connection with the cane farm. It is a connection he shares with his mother. Mrs D Senior deposed that her grandparents originally owned the property. She and her late husband acquired it from them in 1953 and worked it until 1988. It is Mrs D Senior’s fervent wish, shared with the husband, that the farm remain in the hands of the Dalry family. The husband draws his sense of identity, at least in part, from the fact that he comes from generations of cane farmers and is one himself. This is the source of a large part of the difficulty in this case.
It is clear to me that, in 1981, when the parties married, Mr and

Mrs D Senior wished to involve them both in the operation of the cane farm. The husband had grown up on the farm and worked on it, since his early youth. He had not been paid for his efforts, which were regarded as part and parcel of being part of the Dalry family. The husband’s three brothers, H, T and G also worked on the cane farm, but were less well placed to live on it in the early 1980’s, having established careers away from Mackay. This is the background to the acquisition of the parties’ former family home.
In anticipation of the parties’ marriage, Mr and Mrs D Senior decided to erect a home for them on a portion of their cane farm. They purchased a kit home for a sum of $8,423.00 and arrange for a cement slab to be laid for a further sum of $2,268.00. This slab provided the foundation for the house. The husband, in conjunction with his brothers and father erected the kit home. Mr and Mrs D Senior paid for some expenses relating to the construction of the house and the parties themselves paid for electrical work and plumbing.
I accept that in conjunction with the husband, the wife did some painting on the house and her father was also involved in its construction. The house was completed in about eight weeks and was able to be occupied by the parties in the first year of their marriage. They remained living in it until their final separation. The husband continues to live in the property. When the relevant local authority, the M Shire Council approved the construction of the property, its estimated value was approximately $17,000.00. This value was given by the husband’s parents. I accept that, in round terms, it represents the value of the house alone at the time and most of this sum came from Mr and Mrs D Senior.
In 1983, Mr and Mrs D Senior decided to gift to the parties the parcel of land on which their former family home was constructed. This entailed the subdivision, from the cane farm, of a parcel of land of some 4,167 square metres from the main body of the cane farm.[8] It is uncertain what the exact value of the land itself was at the time. However, stamp duty was paid on the transfer, which was lodged on 17 October 1983. Mr and Mrs D Senior paid this stamp duty, together with the necessary legal fees involved. The parties paid for the cost of the survey necessary for the subdivision, which amounted to some $2,000.00.
[8] This is Lot 5 on Registered Plan 73xxx.
I accept the husband’s evidence that the gift of the land was designed to ensure that at least part of the cane farm remained in the Dalry family. It is also clear that, without the generosity of Mr and Mrs D Senior, the parties would not have been able to own a home, which was unencumbered, for many years to come. It provided them with a secure base in which to raise their family. Thereafter, both in consideration of Mr and Mrs D Senior’s generosity and as a result of his own interest in it, the husband regularly worked on the cane farm assisting his father, particularly on weekends. Two of his brothers also provided assistance from time to time but I accept that the husband, no doubt due to his proximity, was the main source of additional labour on the cane farm. This situation provides the background for the parties’ acquisition of the cane farm itself in August of 1988.
In 1988 Mr D Senior became ill and it became apparent, to all concerned, that he would not be able to continue working the sugar cane farm. All the immediate members of the Dalry family wished the farm to remain in the family. None of the husband’s brothers were in a position to take it on. For obvious reasons, the husband was best placed to take over the farm. I have no doubt that this was the long-standing hope of Mr and Mrs D Senior and strongly influenced their decision to gift the land, on which the former matrimonial home was constructed, to the parties.
Mr and Mrs D Senior were not in a position to gift the farm directly to the husband. This would have meant that they would have divested themselves of their most significant asset and also would have deprived their other children of some elements of their inheritance. For these reasons, the property was properly valued in May of 1988 by a registered valuer, Mr G. He was asked to value the farm as a going concern, at a fair market value. Mr G valued the property as follows:
Land  $72,480.00
  Cane stools   $5,320.00
  Cane crop   $16,200.00
  Plant & Equipment  $12,900.00
  Total  $106,900.00
Notwithstanding this valuation, Mr and Mrs D Senior agreed to sell the cane farm to the parties for $50,000.00, somewhat less than half of its actual value. This sum reflected the years of unpaid work the husband had put into the farm. It was also a sum, which the parties and Mr and Mrs D Senior, believed would be capable of being repaid. It was agreed that the purchase price would be paid in seventeen annual instalments of $3,000.00, which payments attracted no interest. It is clear that another factor, which supported this schedule of payments, was that it would give Mr and Mrs D Senior a modest income stream but would not affect their entitlement to social security payments.
T, H and G agreed to this arrangement, notwithstanding that they each had also worked on the farm from time to time, particularly G. I also accept that the wife assisted with planting cane between the date of the parties’ marriage and their acquisition of the cane farm, which formally occurred on 22 August 1988. However, I am satisfied that the husband did significantly more work on the farm than the wife did. It is also clear to me that the major precipitating factor for Mr and Mrs D Senior effectively gifting half of the value of the cane farm to the parties was a desire to ensure that the farm remained in the family. They were supported in this objective by their other sons. Of them, the husband is the only one who does not have any trade or other qualifications. This was another factor which led the various members of the Dalry family to the conclusion that it was appropriate that the husband take over the cane farm.
In 1988, the parties established a partnership, referred to for these purposes as D Pty Ltd, to operate the farm. It seems clear that at this time the farm was not large or productive enough to provide a “living area” for the parties – that is sufficient to provide enough income to support them and their family alone. It was necessary for the husband to continue to work as a bus driver during the week. He operated the cane farm on weekends and his days off. I do not think that his operation of the cane farm in this way can be described as a hobby. Rather, it reflects a common reality of many primary producers, particularly in difficult economic times. They are compelled to combine their farming activities with other outside sources of income. Again, I am satisfied that the husband did the vast majority of the work required to keep the cane farm as a going concern. As previously indicated, the wife was the mainstay of the family and household.
The parties did not always pay the annual purchase instalments.

Mr and Mrs D Senior were prepared to forego payment in difficult years, when sugar prices were low or there was drought. Mr D Senior died in 1992. Thereafter the parties paid a number of Mrs D Senior’s accounts each year, such as her rates, house insurance, car insurance and registration, to a value of approximately $3,000.00, in lieu of the formal payment.
Mrs D Senior was the sole beneficiary of her husband’s estate. At the time of the sale of the cane farm, Mr D Senior had transferred all of his legal interest in the remaining two titles, which made up the cane farm, to the parties. However, in order to secure his interest in the farm, pursuant to the sale agreement of 1998, a mortgage was prepared in his favour, which each of the parties executed. This mortgage was never registered and remains an equitable one. However, Mr D Senior retained the relevant title documents to the cane farm as security.

Mrs D Senior solicitor continues to hold these title documents together with the equitable mortgage.
The husband’s serious illness, which was first diagnosed in 1994, was a major set back for the parties. It resulted in the husband’s retirement as a bus driver and necessitated him finding alternative sources of income, once he had recovered sufficiently to resume work. He had a desk job at the bus company for a time but it did not work out. In 1997, the partnership purchased a cane carting contract from Mr N, a neighbouring cane farmer. This business fitted well with the parties’ circumstances. Its plant and equipment could also be utilised on the cane farm. The husband was a skilled driver with experience in cane carting. The nature of the haulage business complemented the operation of the cane farm.
As previously indicated, the partnership operated the haulage business for approximately five years. Expenses, both for the haulage business and the cane farm, were off-set against income earned from both businesses. A further advantage, from the husband’s point of view, was that he was his own boss and could more easily fit the needs of both aspects of the business into the time available to him. It also seems likely that, due to his state of health, the husband would have found it difficult to obtain salaried employment.
It is the husband’s position that up until 2000 the wife “played a very minor role in the partnership and the running of the farm”[9] In my estimation, this is an overstatement. In cross-examination, the husband confirmed that the wife was a “diligent” farmer’s wife, who necessarily played some role in the management of the farm. Her role as a farmer’s wife became more onerous after the husband fell ill, although I accept that the husband’s brothers and a neighbour provided very substantial assistance to the husband in keeping the farm going when he was ill. It is common ground between the parties that the wife assisted the husband in transporting workers and equipment between various clients, when the partnership was operating the cane carting contract. The husband also concedes that, after 2000 with the inception of the GST, the wife did all the necessary accounts for the partnership.
[9] See husband’s affidavit at paragraph 17.
As at the date of hearing, the parties agree that a sum of $12,000.00 remains outstanding to Mrs D Senior in respect of the purchase price of the cane farm. In addition, the parties acknowledge that Mrs D Senior lent them $6,500.00, in March of 2004, in order to purchase fertiliser and to pay a contractor to plant cane on the farm. It is the position of both parties that these sums should be included as joint liabilities in the table of their matrimonial assets.
The husband has provided the partnership’s tax returns for the financial years ending 30 June 2003, 2004 and 2005. He has also provided his own tax returns for each of these years. These documents show that the partnership produced a profit for the first year in question and a loss for the remaining two years. The precise figures are as follows:
Financial Year                   Profit/Loss
  2002/2003  $56,534.00
  2003/2004  ($23,295.00)
  2004/2005  ($734.00)
The partnership between the parties was dissolved on 30 June 2005. The husband operates an overdraft in relation to the cane farm. It is common ground he owes $57,500.00 in respect of the overdraft.

(c) The husband’s health

There is no dispute between the parties that the husband suffers from a debilitating and irreversible condition. In order to treat it, the husband takes several medications daily, at a cost to him of $120.00 per month. Due to his illness, he is liable to suffer a number of periods each year when he is very unwell and unable to work. The periods range in length from one week to three weeks and during them his limbs ache and swell. Essentially, the husband suffers from a disease which causes his immune system to attack his own body. This has caused damage to his lungs, kidneys, liver and his right eye. He is in the process of losing the tips of his fingers. As previously noted, in 1999, he suffered a right sided weakness caused by bleeding in his brain.

I accept the evidence of Dr K, a consultant rheumatologist, that the condition is life threatening and only managed through major treatment.[10] Dr H whose evidence was not challenged, deposed that she believes that the husband will most likely have to cease employment at an earlier age than might otherwise have been expected, most probably in his late fifties. She further deposed that, due to the medication the husband currently takes, he has difficulty standing for long periods of time, cannot be exposed to excessive sunlight and is unable to undertake what she describes as “heavy manual labour”.
[10] See exhibit H1
The husband struck me as a determined person, who has overcome considerable obstacles to remain in the workforce. In this regard, he is much to be admired. However, it is also the case that the husband has no educational or trade qualifications. His only skills are those acquired as a cane farmer, labourer and truck driver. His age, lack of skills and his medical condition do not make him an attractive employee. Again, for obvious reasons, these are factors which are likely to pre-depose the husband to self employment.
The husband worked for Q for a number of years, as a labourer and driver, after he had ceased the cane carting business. He ceased his employment with Q in early 2006. Part of his duties included cleaning containers with a pressure hose. It was messy and hot work, which the husband found himself unable to do. In addition, I accept his evidence, that he failed a medical test at Q, which was another factor in him leaving this employment. Since early 2006, the husband has been self-employed as a truck driver and cane farmer.

(d) Other contributions

The parties extended their home and added a number of improvements during the course of their marriage. These improvements included a patio; the addition of two bedrooms; a carport; the enlargement of the bathroom and tiling of the living areas. In addition, one of the cane paddocks was levelled. These various improvements were paid for from joint marital income. The husband provided some of the labour. In the overall scheme of things, I do not think these matters are overly significant.
During the marriage the wife bred cats. I accept her evidence that she regarded this as a hobby rather than a business. She commenced the hobby in 2000 and over the following years sold a number of kittens. I accept that the moneys which were generated were utilised either in paying for expenses relating to the breeding of cats or were put into day to day household funds. In my estimation, this income cannot be regarded as significant. As I understand matters, the wife is not currently able to pursue her hobby.

(e)Events since separation

The wife has been living in rented accommodation in Mackay since separation. Her rent is approximately $150.00 per week. She is in part-time employment at a retail outlet in Mackay. Her weekly income is about $500.00 gross. The wife enjoys good health and there appears to be no reason as to why she would not be able to work on a full-time basis. I accept however that, like the husband, she has no specific skills or educational qualifications, which would enable her to obtain anything other than unskilled positions.
The parties’ daughter J has been living with the wife since May of 2005. She pays the wife board of $50.00 per week. Unfortunately, around mid-2006, J fell ill due to the chronic arthritis from which she suffers. It was necessary for her to have a hip replacement as a result. She was out of the workforce for approximately two months. During this time, she was totally financially dependent upon the wife.

J resumed her apprenticeship in September of 2006. She continues to pay a modest amount of board. I accept the wife’s evidence that, in the period following separation, she has supported J to a significant degree.
As previously indicated, the husband ceased his employment with Q in early 2006 due to his illness. In June of 2006, he purchased a tip truck for $22,000.00, borrowing the sum of $28,000.00 from Esanda for this purpose. The husband used the truck to cart “mud” from sugar refineries around Mackay to cane farmers in the district. “Mud” is a by-product of sugar refining and is used as fertiliser. The husband is engaged in this employment five days a week during the season, which lasts about twenty weeks.
In December of 2006, the husband bought another truck for the sum of approximately $40,000.00. This purchase has also been totally financed through a chattel mortgage with Esanda. The husband hopes to use this vehicle as a mud truck. In addition, the husband has done some subcontracting driving for Q, doing deliveries in and around Mackay. During this period, the husband continued to operate the cane farm. His most recent tax return indicates that the farm had a net loss of $22,875.69 in the year ending 30 June 2006.
The husband’s level of income, from the operation of the truck is more difficult to gauge and he himself was uncertain about it. I do not think that there is anything unduly sinister about this. The husband did not strike me as a person who was particularly adept with accounts. In his statement of financial circumstances, the husband estimates his weekly income to be $2,500.00. He attributes the cost of maintaining the mud truck at around $750.00 per week and gives as the cost of the weekly repayments on the loan related to it the sum of $150.00. In cross-examination, it was the husband’s evidence that these figures did not provide a proper picture of what income the truck actually produced for him, particularly after fuel and other running costs were calculated. His tax return for the year ending 30 June 2006 gives a gross income of $45,458.00 for the year. When the loss from the cane farm is deducted from this figure, it leaves the husband with a taxable income of just over $23,000.00.
It is the husband’s position that he contributed the sum of approximately $2,000.00 to K to assist her with her living expenses whilst she was studying in the period immediately after the parties’ separation. It is also his position that he contributed around $1,500.00 towards J’s expenses, particularly when she was having her hip replacement operation. I have no reason to disbelieve the husband’s evidence in this regard and accept that both parties have made some financial contributions towards the support of their adult children in the period since separation.

(f)The sugar industry reform program

Although the matters surrounding this issue are a source of considerable controversy between the parties, neither of them has provided a great deal of specific evidence about the operation of the scheme. As best as I can determine, the Commonwealth Government, for reasons of policy, is willing to offer financial incentives to cane growers to leave the sugar cane industry. Prior to 30 June 2006, each cane grower, who was able to satisfy the Government that he or she had left the industry, was entitled to a re-establishment grant in a sum of up to $100,000.00, provided proof was given that he or she had exited the sugar industry. Necessary proof was provided by documentary evidence of sale or lease of a cane producing property. The scheme is administered by Centrelink. The maximum amount of the grant has now been reduced to $50,000.00, provided satisfactory evidence of exit from the industry is provided prior to 30 June 2007.
The wife’s solicitors wrote to the husband’s solicitors in June 2005 indicating that their client wished to take advantage of the scheme. As previously indicated, the partnership between the parties was dissolved on 30 June 2005. It was the wife’s position that she was prepared to lease her interest in the sugar cane farm to the husband for an annual payment of around $4,000.00. Concurrently with this offer, the wife informed the relevant sugar co-operative association, she personally would not be entering an agreement to supply cane to it in the following year. The husband was disinclined to accept the wife’s offer to lease to him her interest in the cane farm. Accordingly, the wife has not been able to take advantage of the sugar industry re-establishment grant, which has been reduced in value by one half in the period since the parties separated. The maximum amount of the grant is now $50,000.00.
In a technical sense, the wife remains vested with an interest in a sugar cane farm. She has no personal interest in either the conduct of the farm or growing sugar cane. She receives no financial benefits from the farm. My perception is that the loss to her of the maximum amount of the grant represents a considerable source of rancour for the wife.
The husband has no interest in personally applying for the grant, as he wishes to retain the cane farm and remain a sugar cane producer. However, it is his position that, if the wife does obtain a grant for herself, presumably because she will be divested of her interest in the cane farm as a result of these proceedings, the grant should be apportioned between the parties in the same proportion as their other assets. The wife does not accept this submission.

The first step – the pool of assets

The parties agree on the value of the vast majority of their assets. They disagree about the value of a Holden motor vehicle, currently in the possession of the husband. However, it has been agreed that this vehicle should be sold. From the husband’s point of view, the vehicle has a modest value which he estimates to be $500.00.
Otherwise, the parties agree that their marital assets, apart from the cane farm, amount to a value of $107,455.00. I provide this information to provide graphic detail as to the significance of the valuation dispute, between the parties, regarding the cane farm. If the valuation preferred by the husband is adopted, the net pool of assets amounts to $446,455.00. If the valuation preferred by the wife is adopted, the total property pool amounts to $670,455.00, a percentage increase of around 35%. In other words, the dispute represents potentially one third of the quantum of the pool. Clearly, this is the most significant issue in the case.

The evidence of Ms L

The cane farm consists of three lots. The smallest lot is the one on which the former matrimonial home is constructed. It is 4,167 square metres in area. As has been previously indicated, this block was subdivided from a larger lot, which now consists of 37.998 hectares. The third lot consists of some 17.851 hectares and is 2.5km away from the former matrimonial home. It does not have an electricity connection. The two larger lots are utilised for growing cane and have been for many years.
In her report, Ms L indicated that she had undertaken the valuation in accordance with the following definitions provided by the Australian Property Institute:
Market value
“The estimated value for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s length transaction, after proper marketing, wherein the parties had each acted knowledgably, prudently and without compulsion.”
Highest and best use
“The use from among reasonably probable and legal alternative uses, found to be physically possible, appropriately justified and financially feasible which results in an optimum value for the asset valued.”
This issue of highest and best use is at the centre of the valuation dispute.
In her report, Ms L deposed as to the difficulties sugar producers had experienced since around 1999, when world sugar prices had dropped significantly, to a point where production costs often exceeded sugar sale prices. This had resulted in Government incentives for growers to either restructure or quit the industry. However, she also noted that, since late 2005, there had been a significant improvement in world sugar prices and the outlook for the industry had improved markedly as a result. This had resulted in better demand for well located and irrigated cane farms.
Of great significance in this case, Ms L noted that there had been a recent trend for farmers to sell off “individual titles from aggregations for rural hobby farm purposes”. She noted that some farmers had used demands of this kind to either exit the sugar industry completely or to assist with debt reduction. No doubt it was for this reason that Ms L was asked to value the cane farm, both as a farming aggregation and as three titles for possible individual sale.
As a farming aggregation, Ms L valued the property at $415,000.00. As three separate titles, Ms L valued the property as follows:

Lot 5 (the former matrimonial home)

$274,000.00

Lot 6 (the lot from which the former matrimonial home was subdivided)

$230,000.00

Lot 1 (the land 2.5km away from the former matrimonial home and which is not provided with electricity)

$135,000.00

The valuation methodology adopted by Ms L was one of examining comparative sales in the area. She did this in respect of both cane farms sold as such and rural residential properties. In addition,

Mrs Pack, counsel for the wife, asked Ms L to consider the sale of a residential property at G, which sold for $275,000.00 in December of 2006.
In total, the cane farm consists of an area of 56.06 hectares. Ms L considered three sales of cane farms at P, V and E respectively. These sales gave a price per hectare ranging between $4,239.00 and $8,889.00. In addition, Ms L’s analysis took into account the location of each of the properties; their drainage; irrigation infrastructure; the age and condition of the stools; and future replanting requirements. On the basis of these factors, Ms L fixed a price of $5,000.00 per hectare for the parties’ property, if it was sold as a cane farm. She added to this per hectare valuation, the value of the improvements on the land, particularly the former matrimonial home.
In regards to her valuation of each of the titles as potential rural residential properties, Ms L examined seven comparable sales. Of these four related to lot 5 and three related to lots 1 and 6. Lot 1 was regarded by her as being the least valuable portion of land, particularly because of its lack of electricity supply and the likely cost of installing electricity on the property.
In her report, Ms L provided the following opinion:
“We consider the current use of the property as a cane farm to be consistent with the highest and best use of the land at this time. We note the property has three titles and may be sold separately. Both residential and rural residential properties are thinly traded in this location. The two properties located near P have a better appeal to the market. Lot 1 while only 2.5 kilometres south the township has no electricity and no real views and as such may require an extended selling period.”
Ms L considered that the comparative sale provided to her by Mrs Pack of land at G was superior to lot 1. But Ms L did consider that lot 1 may have increased marginally in value since her valuation. However, in her closing submissions, Mrs Pack did not seek to rely on this higher value, being satisfied if the court adopted the higher value provided by Ms L in her report.
In regards to Ms L’s valuation, it is significant to note that she did not regard it as impossible to value the land as separately sold titles due to the absence of comparative sales. She conceded that such sales did occur in the district, although they were infrequent as indeed were sales of cane farms. The current use, as a cane farm, was described as being “consistent” with “highest and best” use. By implication she did not assert that this was the likely sole use of the land and the fact that she could appraise the land on a different basis did not exclude other potential uses. It seems to me that Ms L conceded the use of the land potentially as separate titles to be utilised in a manner other than for cane production.
It is sometimes said that valuation is as much an art as it is a science. Obviously, the infallible means of ascertaining the current market value of any property is to place it on the market and see what price it commands. If this occurs both parties concerned have a vested interest in ensuring the property is realised for the largest possible figure.
This was the approach approved by the Full Court in Smith & Smith[11], where the court said as follows:
“…where the state of the evidence makes the process of valuation hazardous or uncertain, or where there are wide differences between legitimate valuations because of a volatile market or peculiarities relating to the specific property or otherwise, the ascertainment of value by judicial process may become too uncertain and the preferable course is to order the sale of the property so that its real value can be revealed by market forces.”
[11] Smith & Smith (1991) FLC 92-261 at 78,759
However, it may be neither feasible nor just and equitable for a court to order the sale of any particular piece of property solely to ascertain its exact value. Such an outcome may create more difficulties than it solves. This seems to be the case here. The husband fervently wishes to retain the property. The wife is disinterested about it but has not specifically sought its sale nor calculated the likely costs of such a sale, particularly capital gains tax. Finally and most importantly, the individual parcels of land are idiosyncratic in nature and of a kind that is lightly traded.
Ms L conceded that the acreage of the farm is not likely to provide a potential cane farmer with a “living area” because it is too small. That is not to say it will not appeal to an existing cane producer, particularly if sugar prices remain buoyant and the area remains disease free. As hobby farms, the individual lots are likely to have a different level of appeal to prospective purchasers, with block one being the least appealing because of its lack of electricity and access to other amenities. These are factors which militate against the viability of each of the titles being marketed as individual hobby farms and so the court adopting this valuation basis.
From the husband’s point of view, there are difficulties in him maintaining the viability of the cane farm, already problematic, if one lot is sold off individually. In addition, the sale of one such lot makes the prospect of the remainder being sold as a cane farm less likely. For obvious reasons, the value nominated by the court in these proceedings has significant implications for the husband’s ability to continue to run the property as a cane farm. Although it may be unpalatable for the husband to consider, there may be financial benefits for him seeking to realise the farm as best he can and attempting to access the sugar industry re-establishment grant before its closing date. Certainly this is the wife’s position.
For all these reasons, it seems to be the tenor of Ms L’s evidence that, although the total worth of the individual parcels of land, as potential hobby farms, may be considerable, in practice it may be difficult or unrealistic for such a sum to be realised. This, I take it, is what Ms L meant when, in cross examination, she said as follows: “optimal value does not equate to highest value.” Essentially, what it seems to me

Ms L meant by this was that it is probable that one of the parcels might be sold at a premium leaving a balance that was attractive neither as a cane farm nor a hobby farm. This difficulty being compounded by the slowness of the market in the area. This seems to be the underlying rationale that the highest and best use of the land is “consistent” with use as a cane farm.
What of course is known is the attractiveness of the property to the husband as a cane farm. From his point of view, the land has worth only as a cane farm. He has rejected the financial inducements offered by the Government to leave the industry. For these reasons, he has not, formally at least, considered sale. If he is able, he will pay whatever sum is necessary to the wife, to enable the property to remain as a cane farm.

The husband’s capacity to borrow was not an issue which was canvassed in this case at all. Accordingly, in financial terms, I do not know to what extent the husband is prepared to go (possibly in conjunction with other members of his family) to maintain the property as a cane farm. For all I know, the husband may be both prepared and have the capacity to buy out the wife at what he perceives to be a premium, although at first blush his financial capacity appears problematic. Certainly, by implication, it is the wife’s case that the husband is able to pursue such a course. Ostensibly, at least in the form of the orders she seeks, she does not see sale as an inevitability. In my view, there is an air of artificiality in the wife’s position that she be paid a sum of money based on the value of the land as potential hobby farms, which is significantly more than as a cane farm, but she does not seek the sale of the titles, either totally or individually. Essentially neither party is willing to confront directly the prospect of sale and all the potential difficulties such a course will hold.
In the case of Commonwealth v Milledge, the High Court outlined, in the broad sense, the approach a court should take to the resolution of valuation disputes. It is said as follows:
“…by a common sense endeavour, after consideration of all the material before the court to fix a sum satisfactory to the mind of the court as representing the value contained in the land…”[12]
Common sense dictates that the value of any particular piece of land is the maximum amount reasonably likely to be realised on sale to a prudent and informed purchaser. It is what such a purchaser is able to do with the land which is the salient consideration. This motivates the amount he or she is willing to pay. Such a person necessarily does not have any particular emotional attachment to the land in question. For obvious reasons, issues of common sense dictate that a court should take a commercial approach to valuation disputes. In this regard, the desire or aspirations of the husband in respect of the land is irrelevant.[13]
[12] See Commonwealth v Milledge (1953) 90 CLR 157
[13] See GWR v VAR [2006] FamCA 894 at paragraph 52
In Spencer v Commonwealth, Isaacs J provided the following test in order to ascertain the value of any particular piece of land. It is:
“… the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted.”[14]
[14] See Spencer v Commonwealth (1907) 5 CLR 418 at 440.
This proposition has given rise to the principal referred to by Rost and Collins, in their work Land Valuation and Compensation in Australia as the principal known as “valuation for highest and best use”. The learned authors write as follows:
“Recognition of the willing seller-willing buyer concept necessarily involves valuation for the highest and best use for which the land is adapted. The prudent and well-informed vendor (whose existence must be assumed) would not willingly part with his land for a price less than that appropriate to its highest and best use; and the well-informed buyer would not expect to be able to purchase it for less. Each party would take into account “not only the present purpose to which the land is applied, but also any more beneficial purpose to which, in the course of events at no remote period it may be applied, just as an owner might do it he were bargaining with a purchaser in the market. This is the mode in which the land would be valued.”[15]
[15] Rost R O and Collins H G, Land Valuation and Compensation in Australia 3^rd Edition, Australian Institute of Valuers, 1984 at 90.
In Flotilla Nominees Pty Ltd v Western Australian Land Authority and Anor[16], Pullin J referred to the fact that “regard must be had to every element of value which the lands possess”. In this case, I am satisfied that one of the elements which each piece of land possesses is its potential to be sold as a hobby farm. Ms L alludes to this potential in her report and is able to point to the sale of similar parcels of land for this purpose in the district. In this regard, she concedes that the sale of the land at G in December 2006 is apposite.
[16] Flotilla Nominees Pty Ltd v Western Australian Land Authority and Anor (2003) 129LGERA 65 referred to by Coleman J in Dawson & Dawson (2005) PAF1461 of 2004 delivered 19 December 2005
I do not think that the potential of the properties to be sold as hobby farms is a remote possibility. The fact that Ms L was able to value each of the lots concerned in this way militates against such a finding. She considered the properties in the area are sold for both rural and residential purposes, although she qualified her opinion with the proviso that both categories of property were “thinly traded”.
In my view, it would be fundamentally unfair to the wife if the properties were valued as a cane farm only, leaving the husband with the potential to sell each of the parcels later, at a significantly higher price, if they are marketed as so called “life style” blocks. If for some reason, in the not so distant future and on the presumption that he has retained the cane farm, Mr Dalry wishes to sell it, it would seem axiomatic that he would want to sell it for the maximum price and so endeavour to market it to potential hobby farmers. Certainly this is what one would anticipate of the hypothetical prudent and well-informed vendor.
The other attack the husband makes on the valuation preferred by the wife is that she has failed to call evidence as to what the actual result will be if her mode of valuation is adopted. By implication, he asserts that, if the wife’s method of valuation is adopted, he will not be able to meet whatever payment is required of him and so inevitably all three lots of land will have to be sold. In such circumstances, he contends that it is incumbent upon the wife to produce some evidence of what the probable cost of sale will be and so enable the court to ascertain what the likely net proceeds of sale are. As the wife has not done this, he contends that it would be fundamentally unfair to him to allow the wife to rely on the higher valuation.
In this regard, the husband argues that the wife has failed to discharge the onus resting with her. As he does not wish any of the properties to be sold, he contends there is no onus on him to produce such evidence. The husband places reliance on the “fundamental tenet of the procedure for determination of disputes in any Australian superior court of record that ‘he who asserts must prove’”.[17]
[17] See TWN & PAQ [2005] FamCA 677 at paragraph 90
In particular, the husband asserts that the wife has provided no evidence as to the capital gains implications of the sale; similarly the GST implications; the agent’s likely commission and the marketing costs involved.
In Rosati v Rosati[18]the Full Court outlined a number of principals in regards to capital gains tax (and by implication other expenses) arising as a result of the sale or potential sale of any particular marital asset following property proceedings. The court said as follows:
(1) Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.
(2) If the Court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.
(3) If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s 75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.
(4) There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.
[18]   Rosati v Rosati (1998) FLC 92-804 at 85,043
In this case, in a formal sense, neither party seeks orders which would result in the immediate sale of the subject properties. Rather both parties have concentrated on the possible outcome from the case which he or she prefers. In the wife’s case, the payment to her of the largest possible sum of money. In the husband’s case, the retention of the farm for the payment to the wife of the least possible amount of money. Neither has produced any evidence as to the practical means by which his or her preferred outcome is to be achieved. The outcome of this case depends not only upon the valuation of the land, but also on the court’s assessment of the parties’ contributions and the application of the relevant s.75(2) factors.
I accept that the husband would prefer that the cane farm not be sold. However, I think I can conclude the husband must have considered that there was some significant level of risk that he would not be able to meet the sum the court required him to pay to the wife, without the liquidation of at least part of the cane farm. As I have already noted, I have received no evidence as to the husband’s capacity to borrow or whether there is any prospect of him borrowing or being given moneys by members of his family. I do not know how he will meet the requirement to pay whatever sum is ultimately ordered by the court to be paid to the wife.
In all these circumstances, I think there is an extreme level of artificiality in the proposition that the court cannot give accord to the higher value attributed to the properties because of an absence of evidence regarding sale costs and tax implications, as to a large extent, both parties have failed to confront the issue directly as to how the wife’s entitlements will be met.
In addition, there are pragmatic reasons as to why the court should endeavour to finalise the matter as soon as possible. Eligibility for the sugar industry re-establishment grant closes on 30 June 2007. If the cane farm is to be sold, both parties have an interest in being able to apply for the grant. In addition, in such circumstances, both parties have a vested interest in ensuring that they receive the maximum price for the cane farm.
In my view, it is not appropriate for the wife’s potential entitlement to the sugar industry re-establishment grant included in the parties’ pool of assets. In my view, the sum represents a potential future financial resource for the wife (and possibly for the husband), depending on the outcome of the case) and is so more properly considered under the heading of s.75(2) of the Act.
For all these reasons I find that the following represents the parties’ pool matrimonial assets and liabilities.

ASSETS	$	$	$
Cane farm	639,000
Farm plant and equipment (husband)	45,020
Toyota dual cab (wife)	17,500
Harley Davidson motorcycle (husband)	14,000
Hi-Lux motor vehicle (husband)	4,250
Holden motor vehicle	To be sold
Ford motor vehicle (husband)	200
Trailer (husband)	1,200
Telstra shares	1,788
AMP shares	2,083
STL shares (wife)	1,945
STL shares (husband)	274
Superannuation (wife)	2,768
Superannuation (husband)	16,427
Total Assets	746,455
LIABILITIES
NAB overdraft	57,500
Equitable mortgage – Mrs D Senior	12,000
Debt – Mrs D Senior	6,500
Total Liabilities	76,000
NET ASSETS	670,455.00

The second step – assessment of contributions – section 79(4)(a)(2)(c).

I now turn to the second of the steps in the exercise under s.79, namely an assessment of the parties’ contributions within the context of s.79(4)(a) to (c). These provisions are as follows:
“Section 79(4) in considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of home maker or parent.”
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation and improvement of any particular asset and may be taken into account generally as contributions in a total sense. The task required of me pursuant to s.79(4) of the Family Law Act 1975 thus is to weigh and assess the disparate contributions of the parties to arrive at an outcome, which is both appropriate and just and equitable in all the circumstances. Contributions, which are different in quality and nature, must be compared. The exercise is not purely an arithmetical or accounting one.
Were it not for the question of the contributions of Mr and

Mrs D Senior, I would have little difficulty in reaching the conclusion that the various contributions of the parties, both during their long marriage and afterwards, should be assessed as being essentially equal. Both worked extremely hard during the marriage.
Clearly, in spite of great difficulties occasioned by his health, the husband was an exemplary breadwinner. For her part, the wife managed the home and provided a larger measure of the responsibility for caring for the parties’ children. She was also involved in the running of the farm, particularly after 2000 and the inauguration of the GST. Her contributions in respect of the farm became more onerous when the husband became ill. In my view, the additions which were made to the former matrimonial home are contributions which should be considered to be equally made by both parties.
In addition, I do not think that the contributions of the parties, in the period following separation, can be regarded as significantly different. Both made some financial contributions to the welfare of K and J. I accept that the circumstances of the wife have been difficult in the period since the parties separated. She has been living in rented accommodation and in receipt of a modest part-time income. Although the husband has retained possession of the vast majority of the matrimonial assets, these have not provided him with any significant amount of income. All things considered, I do not believe that his financial circumstances can be considered to be markedly superior to those of the wife. For those reasons, I do not think that issues of post separation contribution loom large in this particular case.
The gift of the kit home, the cement slab on which it was constructed and later, the donation of the land on which the home actually stands were expressed as being gifts to both parties. However, I am satisfied that these gifts were clearly made by Mr and Mrs D Senior with the intention of benefiting only the husband.
In a practical way, Mr and Mrs D Senior wished to provide the husband with an incentive to remain living on the cane farm, with the long term view that he would take the farm over in due course and ensure its continuity of ownership in the Dalry family. This was also a reflection of the husband’s long term involvement in the farm. As such, I am satisfied that these contributions should be taken to have been made on behalf of the husband alone.[19]
[19] See Gosper & Gosper (1987) FLC 91-818 and Kessey & Kessey (1994) FLC92-495
In my estimation, the contributions represented by the acquisition of the cane farm by the parties from Mr and Mrs D Senior in 1988 have a similar quality to those made in respect of the former matrimonial home. Clearly the contributions occurred after seven years of the marriage had passed but they were the culmination of the husband’s long involvement in the cane farm and came about because of his relationship with his parents. Clearly Mr and Mrs D Senior wished to make it as easy as possible for the husband to take over the running of the cane farm and they envisaged he would be central to the cane farm’s ongoing viability. For reasons of sentiment, they did not wish to see the cane farm leave their family and had no wish for it to be sold.
I accept that it is likely that the marriage between the parties was instrumental in Mr and Mrs D Senior agreeing to the transfer in the first place. The marriage was longstanding and provided the husband with stability. No doubt, Mr and Mrs D Senior also wished to ensure that their grandchildren had a secure place in which to live. I also accept that the wife had some role in the management of the cane farm. However, her role in the farm seems to have been markedly subsidiary to that of the husband, who had clearly provided a large amount of labour in the cane farm, many years of which pre-dated the marriage between the parties. It is clear to me that Mr and Mrs D Senior’s primary motivation in selling the cane farm, at a discounted rate, was to benefit the husband and ensure that the farm remained with their direct kin. In this desire, they were supported by their three other children.
The parties were able to purchase the cane farm on extremely beneficial terms. These included a significantly discounted price and an interest free loan spread over many years. In addition, payments were suspended from time to time, when the parties’ financial circumstances were strained. It seems doubtful that the parties would have been able to purchase a similar cane farm and be in the financial position which they now occupy without the extensive support supplied to them by the husband’s parents. Accordingly, in my view, these contributions are to be regarded as contributions made on the husband’s behalf.

As is clear from the table of the parties’ assets, the cane farm is by far their most substantial asset. The husband has made the most significant contribution to its acquisition. It also provided the parties’ home and, from time to time, part of their income. On the other hand, the wife has also made significant contributions, as a home maker and a parent. The parties were content to divide their responsibilities in this “conventional” way, with the husband applying himself as the family’s main breadwinner, both as a truck driver and on the cane farm. Necessarily, as a result of the nature of her contributions, the wife’s activities in the marriage have not directly added to the parties’ net worth. However, as I have already found, both parties contributed, to the full extent of their capacities, during their marriage.
The difficulty provided by the case is how the husband’s superior financial contributions, both initially when the former matrimonial home was acquired and later when the cane farm was purchased, are to be balanced against the significant contributions which the wife has made during the period of the marriage over many years, which have not of themselves directly resulted in the acquisition of assets.
It is a difficulty to which I have already alluded in that, pursuant to the section 79 exercise, the court is often called to compare fundamentally different things. In Ferraro, the Full Court of the Family Court noted as follows:
“The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and can not be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role”[20]
[20] Ferraro & Ferraro (1992) 16 Fam LR 1 at 38
Cases involving one party having made a significant initial injection of capital, where the marriage concerned is of a significant period and which involve the court having to assess non-financial contributions pose particular problems. As the Full Court observed in Ferraro, a court such as this one must be careful not to undervalue the homemaker role. On the other hand, it may lead to injustice if, in a similar fashion, a major discrepancy in the respective contributions of initial capital is overlooked. In the past, there has been a tendency to suggest that such an initial contribution of capital is “eroded over time” by other factors, particularly homemaking contributions. The Full Court has pointed out that such a formulation is erroneous.
In Pierce & Pierce,[21] Ellis, Baker & O’Ryan JJ made reference to several of the relevant authorities. Their Honours said as follows:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions both of the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.”
“…there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome, which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.”
[21] Pierce & Pierce (1999) FLC 92-844 at page 85,811
Notwithstanding the wife’s significant contributions during the marriage, I have come to the conclusion that the husband’s contributions are to be regarded as being markedly superior, as they have resulted in the acquisition by the parties of the vast bulk of their property. This contribution also includes the markedly higher value of the cane farm on the basis of its developmental potential. In my view these contributions are so disproportionate to the parties’ various other contributions that they merit special recognition.
Bearing in mind all these various factors, I have come to the conclusion that the husband should receive around the vicinity of 65% of the parties’ pool of assets at the end of the second stage of the process.

The third step – section 75(2) factors – the prospective needs of the parties

I am now required to consider the various matters set out in s.75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The s.75(2) factors are as follows:
(a)    the age and state of health of each of the parties;
(b)    the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)    whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)    commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)    the responsibilities of either party to support any other person;
(f)     subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
(g)    where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)    the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)    the property of the parties; or
(ii)   vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
Subsection (a) – The wife is aged 45 and in good health. There seems to be no reason relating to her health which precludes the wife from being in full-time employment. The husband is older, being 50 years of age. I accept his state of health is poor and likely to remain so. His prognosis indicates that his condition is likely to deteriorate. These factors favour the husband to a significant degree.
Subsection (b) – The husband has been in employment for most of his working life, with a significant break in 1994, when he first fell ill. He has skills as a cane grower and truck driver. Otherwise, he has no specific trade or educational qualifications to fall back on. Essentially, he is an unskilled labourer. As such, his state of health is central to his income earning ability.
Due to his poor state of health, it is likely to be very difficult for the husband to secure a wage earning position with an employer providing benefits such as holiday and sick pay. Rather, the husband’s only real option is to pursue self employment, as he has done, as a truck driver. Although this kind of work is less physically demanding than cleaning containers with a pressure hose, it remains arduous. The husband is likely to find it difficult to obtain a sedentary position. It is also not something he finds appealing.
Through his admirable determination, the husband has been able to make a modest income as a self employed truck driver. Given his state of health, I judge his position is somewhat precarious in this regard. If he falls ill again, he may not be able to maintain this employment. His truck, which he requires to operate the business, is subject to a significant chattel mortgage, which essentially exceeds the worth of the vehicle concerned. There seem to be no other alternative sources of work available to the husband. I accept that it is likely to be difficult for Mr Dalry to work more than the next six to eight years, in spite of his obvious determination to overcome his physical limitations.
If the orders which Mr Dalry seeks are made, he will retain the cane farm. There seems to be doubt that the farm will be sufficient to provide him with an adequate “living area”, particularly if sugar prices remain low. The husband’s desire to retain the cane farm is related more to sentiment than economic considerations. In future, it seems to me to be unlikely that the cane farm will provide Mr Dalry with any high degree of financial security. Largely it seems for personal reasons, Mr Dalry has elected not to pursue any entitlement he may have to a sugar industry re-establishment grant.
The wife does not have any specific educational or technical skills and she to is to be regarded as an essentially unskilled worker. She left the paid workforce prior to the birth of the parties’ first child and remained out of it for many years. She had a brief period of time working in an unskilled capacity in a factory and more recently has been a shop assistant. It is likely to be difficult for her to move from this employment and her income for the foreseeable future is likely to be modest. However, there is nothing to indicate that the wife will be unable to maintain secure employment for the foreseeable future and will be able to provide herself with some measure of financial security. In particular, there seems to be no reason why the wife should not move to full-time employment.
The wife potentially has access to a significant financial resource in the form of the sugar industry re-establishment grant. If the wife is able to convince the relevant authorities that she has divested herself of any interest in a sugar producing property, she will be potentially entitled to a grant of up to $50,000.00. Time for her to access the grant is short, as it closes on 30 June 2007.
As I have previously indicated, I have not been provided with any extensive evidence about the nature of the grant, particularly its terms and conditions. Accordingly, I cannot assess with a complete degree of certainty that the wife will indeed receive the grant. However, on balance, it seems more likely than not that she will receive some form of payment from the Commonwealth Government, as a result of the divesting of her interest in the cane farm.
Given that the grant will be personal to the wife alone, and the husband has, at this point at least, elected to remain in the sugar industry, it is difficult to see how he could claim any entitlement to the grant. However, if received, it will provide the wife with a measure of financial protection, in the short to medium term, particularly whilst she is regaining her financial equilibrium following the end of the marriage between the parties.
Subsection (c) – This is not a relevant consideration in this case.
Subsection (d) and (e) – The husband has a significant commitment to purchase medication for himself. This commitment will remain for the rest of his life and is likely to become more rather than less significant. Both parties have provided some financial assistance to the children of the marriage, J and K. K is presently self supporting and likely to remain so. J has significant health problems but is also currently in full employment. She is living with the wife, who subsidises her living expenses to some degree. The factors for consideration under this criterion do not appear to me to be significant in this case.
Subsection (f) – The husband has a modest amount of superannuation. His current level of superannuation will not provide him with any degree of financial security in retirement. It seems unlikely that his remaining working years will be sufficient to remedy this deficiency.
The wife has even less superannuation than the husband. Like him, she is singularly unprepared for retirement. In my view, the matters for consideration under this criterion support both parties equally.
Subsection (g) – As I said at the outset of these reasons for judgment, this is a case about lifestyle and the different modes of life each party wishes to pursue in future. The husband wishes to be a cane farmer. In economic terms alone, there appear to be compelling reasons which indicate that this is not the most prudent course for him to adopt. The cane farm is small and has made losses consistently. In addition, he has chosen to forego significant incentives offered to him and others to quit the industry. Personally at least and as I have found, he has chosen to ignore the development potential of the farm.
From the wife’s point of view, the writing is on the wall, so far as the cane farm is concerned. Its retention makes no economic sense, either for her or the husband, particularly as they age. She is resentful at the barriers the husband has placed in her way regarding her achievement of a sugar industry re-establishment grant. One of the underlying and difficult issues in this case is the extent to which the different lifestyle choices of the parties should impinge upon one another.
At the heart of the husband’s case is his view that, as the cane farm was largely a gift to him, as a cane farm and was based on the assumption that he would continue to work it as a cane farm, his wishes about it continuing operation should be given some pre-eminence by the court. It is impossible to be anything other than sympathetic for the husband and the conditions which have confronted him as a primary producer over many years.
I can well understand the husband’s desire to remain on the land at whatever cost. This is the only lifestyle he has ever known and is one to which he has a great and longstanding emotional commitment. However, it is incumbent in my finding regarding the value of the cane farm that it would be inequitable to reduce the wife’s potential standard of living because it is the husband’s preference alone to remain working on the land. There must be some balance made between the competing aspirations of the parties, which is devoid of sentiment.
In my assessment, the remaining sub-paragraphs of s.75(2) are not specifically relevant in this case.
Bearing in mind the husband’s health issues and shortened work life expectancy, when measured against the wife’s low skill base but likely probability of being able to remain in the workforce for many years to come, I have concluded that the s.75(2) factors overall favour the husband to some degree. In reaching this conclusion, I bear in mind the lack of retirement preparedness of them both. As a result of these factors, I have come to the conclusion that there should be a further distribution of property of 5% in the husband’s favour.

Section 79(2) – is this a just and equitable outcome

The final step in determining proper matters is to stand back and consider whether the proposed result is just and equitable. It is all very well to talk in percentage terms, so far as orders are concerned, but what matters to the parties is what the orders mean to them in dollars and cents and what effect they have on their long term plans and aspirations. In this sense, the case troubles me. Quite simply, I do not know if the husband will be able to meet the required payment to the wife and maintain the cane farm as a working entity, as he wishes.
As these reasons for judgment show I hope, I regard this to be a difficult case. Cases involving farming properties, which have been either in part or total gifted by or inherited from a family member of one of the parties, are invariably difficult. This is because of the nature of the property concerned and because it is often difficult to ascertain a specific intention on behalf of the donor regarding his or her gift of a farm or other primary production property. The difficulties are compounded when the relationship between the parties in question is a long one.
The decision I have reached results in the husband receiving the larger proportion of the parties’ assets. In reaching this conclusion, I am conscious of the length of the parties’ marriage and the importance of the wife’s contributions as a homemaker and parent. However, the most significant aspect of the case is the source of the vast bulk of the parties’ marital property and why it came into their possession in the first place. Although the kit home, the land on which it was constructed and later the highly subsidised sale of the cane farm were expressed as being alienations to both parties, I am satisfied that the intention of Mr and Mrs D Senior was to benefit the husband.
The relationship between the husband and his parents is significant in this regard for a number of reasons, putting aside the obvious significance of blood ties. The husband and his parents have been cane producers during all of their lives. They have lived and worked on the cane farm in question for the vast majority, and in the husband’s case, for all of his life. Clearly, it was the intention of the Mr and

Mrs D Senior that the cane farm remain, if at all possible, with the husband.
These factors, when coupled with the husband’s problematic health and shortened work expectancy, dictate that he should receive a larger portion of the parties’ assets. However, at the same time, it is not appropriate that the wife should be prejudiced by the husband’s desire to follow a lifestyle which she no longer finds amenable or conducive to providing for her financial security. Putting aside emotional considerations, I have concluded that commercial realities should dictate the valuation of the cane farm.
There is often a degree of artificiality in the valuation exercise pertaining to any piece of property. Items that are idiosyncratic in nature or rarely sold pose particular problems. I am also aware of both the practical and emotional difficulties incumbent in realising the value of the farm as lifestyle blocks or hobby farms, particularly in the case of lot 1, given its location and lack of electricity. However, for the reasons provided, I am satisfied that it would be inequitable to the wife to adopt any valuation for the farm, other than its potential highest and best use. It would be unfair to the wife if the husband was able to retain the ability to sell any or all of the titles concerned, as hobby farms in future, regardless of his present intention to continue working the property as a cane farm.

A major criticism, made by the husband of the wife, is that she has not provided evidence of the actual expenditure which will arise from the sale of any or all of the titles concerned. This is so. But in my view, for understandable and human reasons, neither party has grasped the nettle of the properties possible sale. The husband has ignored this possibility just as much as the wife. Accordingly, I do not think this provides a proper basis for ignoring the value of the land, if utilised to its full commercial potential, notwithstanding that this approach is likely to leave the possibility of some issues being unresolved, particularly as the husband’s borrowing capacity is unknown.
The issue of the sugar industry re-establishment grant is an amorphous one. I concede it provides a potential significant financial resource to the wife but whether she will ultimately receive it and what its exact quantum will be is unclear to me. It is also not beyond the bounds of possibility that the husband will elect to pursue it in the near future, notwithstanding his present disavowal of it. I take the grant into account, in a loose sense, as being supportive of my determination that it is appropriate that the husband should receive a larger proportion of the parties’ assets than the wife.
Seventy percent of the parties’ net assets is represented by the sum of $469,318.50 and thirty percent by the sum of $201,136.50. If the husband retains the cane farm ($639,000); its plant and equipment ($45,020); his two motor vehicles, motorcycle and trailer ($19,650); the STL shares and his superannuation ($16,701); and he retains responsibility for all the liabilities in respect of the farm ($76,000); he will retain net assets to the value of $644,371.00 and accordingly it will be necessary for him to pay a sum of money to the wife to satisfy the determination herein.
If the wife receives all the shares ($3,871); and retains her motor vehicle, superannuation and STL shares ($22,213); she will have assets in her possession to the sum of $26,084.00. Accordingly, it will be necessary for the husband to transfer to the wife the sum of $175,052.50 to achieve a 70/30 percent division of the parties’ net assets. I propose to round that sum down to $175,000.00.
I am satisfied that this represents a just and equitable outcome of these proceedings. I will allow the husband sixty days to raise this sum.
Given the issues to which I have alluded in these reasons for judgment, it is appropriate that the parties have liberty to re-list the matter before me if a need arises for any consequential orders to be made. For all these reasons, the orders of the court are as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Penny Smith

Date: 2 April 2007

and Clauson v Clauson (1995) FLC 92-595

Lot 5 (the former matrimonial home)	$274,000.00
Lot 6 (the lot from which the former matrimonial home was subdivided)	$230,000.00
Lot 1 (the land 2.5km away from the former matrimonial home and which is not provided with electricity)	$135,000.00