Davis and Davis

Case

[2005] FMCAfam 254

9 August 2005


FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIS & DAVIS [2005] FMCAfam 254
FAMILY LAW – Property – property at the commencement of cohabitation – financial contributions during cohabitation – financial contributions after separation – non-financial contributions – s.75(2) factors – support for child – final orders made.
Family Law Act 1975 (Cth), ss.75(2), 79

S & S [2002] FMCAfam 295

In the marriage of Black and Kellner (1992) 15 Fam LR 343
In the marriage of Weir (1992) 16 Fam LR 154
In the marriage of Kowaliw and Kowaliw (1981) FLC 91-092

Pierce v Pierce (1999) FLC 92-844

Applicant: THERESE KIRSTEN DAVIS
Respondent: STEPHEN DOUGLAS DAVIS
File No: CAM509 of 2004
Delivered on: 9 August 2005
Delivered at: Canberra
Hearing date: 29 October 2004
Date of Last Submission: 29 November 2004
Judgment of: Mowbray FM

REPRESENTATION

Counsel for the Applicant: Ms A Tonkin
Solicitors for the Applicant: Elrington Boardman Allport
Advocate for the Respondent: In person

ORDERS

  1. That the husband pay the wife the sum of $160,000 on or before a day two (2) months from this date.

  2. That upon payment of that amount any beneficial interest of the wife in the real property situated at 21 Huon Crescent, Holsworthy in the State of New South Wales, being the whole of the land in Lot 69 DP231179 (the Holsworthy property) is by force of this order extinguished.

  3. That in the event that the husband fails to comply with Order 1, the husband and wife shall forthwith take all necessary steps to sell the Holsworthy property, and upon completion 41 per cent of the gross proceeds of the sale shall be applied to the wife with the balance to the husband.

  4. That except as otherwise specified in these orders each party is solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.

  5. That the orders made on 4 May 2005 be discharged.

  6. That each party have liberty to apply at 7 days notice on matters concerning the implementation of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM509 of 2004

THERESE KIRSTEN DAVIS

Applicant

And

STEPHEN DOUGLAS DAVIS

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This matter is a property dispute between Ms Therese Davis (the wife) and Mr Stephen Davis (the husband).  On 10 October 2003 the wife filed an application in the Family Court for the alteration of their property interests.  The husband filed a response on 6 January 2004 and the matter subsequently was transferred to this Court.

  2. The wife is seeking an order for payment by the husband of $200,000.  The husband on the other hand wants the wife to pay him the equivalent of three years’ university costs at $40,000 per year.

Background

  1. The husband is 33 years old and the wife 31 years old.  Although there is some dispute about the precise time at which the parties commenced their relationship it is clear that they started living together about December 1995.  It is agreed that they separated temporarily from April 1996 to December 1996 when they reconciled.  They were married on 5 September 1998.  From April 2001 to the end of October 2001 the husband was absent on a posting in East Timor. 

  2. There was disagreement at the hearing about the date when the parties finally separated.  The wife said that it was 26 December 2001.  Although the husband put that date in his affidavit as the point of separation, at the hearing he asserted that it was about November 2000.  This was the time he says that his wife attempted to sell her Land Rover.  Under cross examination the husband accepted that there was no physical separation from November 2000 and that the wife continued to live in the home until 26 December 2001.  Further, in view of the birth of the child on 2 September 2001 I cannot accept that separation took place in November 2000.

  3. I therefore find that the parties separated permanently on 26 December 2001.

  4. The one child of the marriage, Isabella Mary Lydia Davis, was born on 2 September 2001.

  5. In 1993 prior to the parties commencing their relationship the husband purchased a property known as 21 Huon Crescent, Holsworthy, New South Wales.  The wife purchased a property at 4 Fernleigh Street, Wagga Wagga, New South Wales, with her brother in March 2002 after the parties had permanently separated.  In April 2004 the wife’s brother sold his share in the property to her and in September 2004 the wife sold the property at 4 Fernleigh Street and replaced it with another property at 2 Fernleigh Street, Wagga Wagga.

  6. The husband now lives with a Ms Mary Knight.  The wife has not repartnered.

  7. On 26 February 2002 the Local Court at Wagga Wagga made orders by consent that the child, Isabella, reside with the mother, who would be responsible for her day to day care, welfare and development.  The father was to have contact with the child from time to time as agreed between the parties.  The contact was to be reviewed when the child turned three.

  8. Further relevant facts will emerge in the balance of this judgment.

The relevant law

  1. Federal Magistrate Ryan has set out the approach that the Court is required to take in a determination of an application under s.79 of the Family Law Act 1975 (Cth) (the Act). In S & S [2002] FMCAfam 295 she said:

    28. The approach to the determination of an application under s79 is well established by authority In the Marriage of Lee Steere and Lee Steere ((1985) FLC 91-626); In the Marriage of Ferraro and Ferraro ((1993) FLC 92-335); In the Marriage of Clauson and Clauson ((1995) FLC 92-595) the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other Order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.

    29. In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider.  Russell v Russell ((1999) FLC 92-877).

The evidence

  1. In this matter I have had regard to the affidavit evidence of the husband and the wife as well as the oral evidence at the hearing.

  2. In general I found the husband’s oral evidence unconvincing and unsatisfactory.  He was evasive in answering questions and at times appeared unwilling to provide a full account.  He was reluctant to give any credit to the wife, he was inconsistent in his answers and was less than frank in his responses under cross examination.  He was selective in the documents he submitted to the Court in support of his financial position.

  3. The Full Court of the Family Court has pointed out that it is the duty of each party involved in property proceedings to make a full disclosure of their financial affairs (In the marriage of Black and Kellner (1992) 15 Fam LR 343 and In the marriage of Weir (1992) 16 Fam LR 154).

  4. As a consequence where there is a difference between the evidence of the husband and wife I have generally preferred the evidence of the wife which was more convincing and of greater assistance.

The property pool at the date of the hearing

  1. I find that the parties’ assets and liabilities at the date of the hearing are as set out in the table below.

    Assets at the date of hearing  $

    Holsworthy property (husband)  390,000

    Wagga property (wife)  190,000

    Land Rover (husband)  8,000

    Army truck (husband)  3,500

    Subaru (wife)  20,000

    Husband’s contents  3,500

    Wife’s contents   5,000

    Husband’s savings   704

    Wife’s savings                    1,600

    AMP policy (husband)  4,077

    Superannuation (husband)  18,300

    Superannuation (wife)  16,040

    Total Assets  $660,721

    Liabilities at the date of hearing   $

    Holsworthy mortgage (husband)  114,000

    Wagga mortgage (wife)  154,250

    HECS (wife)  5,200

    Total Liabilities  $273,450

    Net Assets  $387,271

  2. The property pool set out above is as submitted by the wife at the hearing.  The husband accepted the various items on the list and their values. 

  3. In his financial statement the husband included two credit card liabilities, a St George Mastercard for $9,453 and an ANZ Mastercard for $4,554.  No evidence has been produced by the husband in support of these liabilities.  I propose to disregard these liabilities.  I cannot be satisfied that they are relevant to the relationship between the two parties.  The parties separated three years ago and the husband has since formed a new relationship. 

  4. I therefore find that the net asset pool is $387,271.

Property at the commencement of cohabitation

  1. The parties commenced living together around November to December 1995 having begun a relationship earlier that year.  It is accepted that the husband brought into the relationship the Holsworthy property, which had been purchased by him in 1993 for $135,000.  It is also common ground that at November 1995 there was $125,000 outstanding on a loan with the St George Bank.  On the one hand the husband asserts that the value of the property at the commencement of cohabitation was $185,000, giving him an equity of $60,000.  On the other hand the wife suggests that the equity was $10,000.

  2. However, no valuation has been provided for November/December 1995.  I am therefore not in a position to put a value on the husband’s equity at that time, nor should I speculate on it.

  3. At the time that cohabitation commenced the husband also had an ex-Army Land Rover, which he later sold for $3,500, a 1942 Blitz truck which he sold in 1998 for $4,000 and a Holden Commodore motor vehicle which the wife says was not of any significant value.  The husband also brought into the cohabitation a life insurance policy which he had commenced in 1988 and cashed in for $10,000 in 1998.  He said he had no idea of the value of the policy at 1995, but it clearly would have been less than $10,000.

  4. The wife owned a 1992 Corolla Hatch at the beginning of the relationship having purchased that in 1993 for $17,000.  By November/December 1995 she owed approximately $12,000 on this car.  In about 2000 the husband sold the car to his mother for $9,000.

  5. There is a dispute over who owned the furniture and household effects brought into the home in November/December 1995.  The wife says that the husband owned minimal household effects and that the home was furnished with all her furniture.  She estimated the value at approximately $8,000.  She had had a house full of furniture, some of which went into the new home and some which was unable to fit and so stayed with her brother.  On the other hand the husband asserts that he owned furniture and household effects of an estimated value of approximately $12,000 at the time of cohabitation. 

  6. Under cross examination the wife reaffirmed her affidavit evidence that she had provided furniture and household effects to approximately $8,000 in value.  She accepted that the husband had had a fully furnished house, but he got rid of a lot of things when she moved in.  The husband gave no further evidence about the household furniture and effects.

  7. Of course, neither party is an expert valuer.  Accordingly, this must be reflected in the weight I give to the valuations placed on the furniture which I treat with caution.

  8. On the relatively small pool of assets at the commencement of cohabitation the husband is ahead of the wife.  Indeed, this was accepted by the wife through her counsel.

Financial contributions during cohabitation

  1. To provide a better understanding of these contributions it is first necessary to refer to the bank accounts held by the two parties during the course of their cohabitation.

  2. From 1995 to 1997 both the wife and husband had separate bank accounts.  In about January or February 1997 following their reconciliation in December 1996 they opened a joint account.  This joint account was closed about November 2001 when the husband returned from East Timor.  The wife opened her own personal account in about September 2000.  Throughout the period of cohabitation the husband also retained his own personal account.

  3. The wages of both the husband and wife were paid into the joint account when it was in operation.  The mortgage was paid from that account as were living expenses.  Prior to the temporary separation in April 1996 the wife paid her husband $80 per week in cash, which she understood was to be applied to mortgage repayments for the Holsworthy property of about $250 to $300 per week.  She also shared equally in the payment of other living expenses, including food, electricity and telephone costs. 

  4. The wife stopped making contributions to the joint account when she opened her own personal account in about September 2000.  From that time her earnings, from hospital employment, temporary employment and family assistance, went into her personal account.

  5. The wife’s contributions to the mortgage therefore were $80 per week from November-December 1995 until the parties temporarily separated in April 1996.  During the six months separation from April to December 1996 the wife made no contribution to the mortgage.  From the reconciliation in December 1996 until the opening of the joint account early in the 1997 she contributed $80 a week again.  From then until September 2000 all her wages went into the joint account from which the mortgage was paid.  From September 2000 the wife did not contribute to the joint account. 

  6. The wife was engaged in either full-time or part-time work until about May 2001 when she stopped due to her pregnancy.  For some of this period from March 1999 to December 2001 she was studying for a nursing degree and consequently worked part-time except during the term holidays when she undertook full-time work.

  7. After the birth of her child she did not resume employment until after she graduated in April 2002.  She then commenced part-time in which capacity she worked until February 2004.  Since that date she has been employed on a full-time basis.  Her tax returns for the six years 1997 to 2002 indicate that her average taxable income per year was about $15,000.

  8. At the commencement of cohabitation the husband was working full-time as a transport driver.  He also had a part-time job with the Australian Army driving buses at weekends.  In 2001 he was on a contract with the Australian Army for 12 months and from April 2001 to October 2001 he was posted to East Timor with the Australian Army.  He says that his taxable income from 1995 through to the end of the relationship was approximately $50,000 per annum.

  9. The husband says that before the opening of the joint account his wife did not pay any of the living expenses.  The wife says that living expenses were shared equally.  There seems to be agreement that after the opening of the joint account living expenses were taken exclusively from the joint account.  I accept the evidence of the wife that until the opening of the joint account she shared equally in the living expenses with her husband.  I also accept that from September 2000 to October 2001 when her brother Chris lived with them, he met his own expenses by contributing to the household bills.

  10. In late 1999 or early 2000 the husband purchased a Land Rover for about $24,000.  He obtained a loan from Esanda Finance, which he repaid when he returned from East Timor in October 2001.  Shortly after the purchase of the Land Rover the wife’s Corolla was sold for $9,000 to the husband’s mother.  Together with approximately $14,000 from the home mortgage account the proceeds were used to purchase a new Land Rover for the wife for approximately $32,000.  Later the wife traded the Land Rover in for a Subaru for approximately $33,500 as she could not afford to run the Land Rover as a student.  She agreed that she possibly took about $2,000 from the joint account to assist in paying for the Subaru.

  11. In her affidavit the wife asserted that her husband purchased a number of tractors, trucks and model trains as a hobby during the relationship.  She suggested that he had purchased 13 tractors, two Blitz trucks and a trail bike and numerous model trains, including a three and a half inch scale steam train for $3,000 and numerous stationary steam engines.  She said that he used money from the joint account to purchase these hobby items.  When they were sold he would keep the proceeds of the sale separate from the joint funds.  Indeed, on one occasion she had discovered cash from the sales hidden in a drawer.

  12. The husband agreed that he had purchased 13 tractors using funds drawn from the joint account.  However, he was hesitant in putting a figure on the amount that he had spent.  Initially he said about $10,000, but later reduced that to $5,000.  He said that he sold all the tractors for $7,000 or $8,000 before he went to East Timor and most of this money went back into the joint account.  Some was retained as cash, however, because he did not have time to go to the bank.

  13. The husband also accepted that he purchased a truck which he still owns for $3,500, but he denied that he had bought two Blitz trucks and a trail bike.

  14. He had purchased model trains, probably about 15 of them, at a cost of approximately $1,000.  He had later sold them for cash.  This cash was not banked in the joint account.  He also agreed that he purchased a small scale steam engine for $3,000.   When it was sold he says he was paid by cheque.

  15. When cross examined on the source of the funds for the purchase of these hobby items and the destination of the receipts from sales the husband prevaricated for some time.  Eventually he agreed that all moneys for the purchases came from the joint account.  It is unclear how much was taken from the joint funds for the purchases, but it may have been between $10,000 and $15,000.

  16. The husband accepted in evidence that not all the funds had been returned to the joint account.  But he did not provide any bank statements or other documentary evidence to support his assertion that some had.  He also accepted that his wife had discovered a large sum of money, perhaps up to $5,000, in notes hidden in a drawer.

  17. In the circumstances I am not prepared to accept that any of the funds were returned to the joint account and am of the view that the husband used the funds for himself.

  18. Ms Tonkin asserts that the principle of waste set out in Kowaliw’s case (In the marriage of Kowaliw and Kowaliw (1981) FLC 91-092 at 76,645) should be applied to the husband’s use of joint account funds for these hobby items:

    If a party has acted in the manner to which I have referred earlier either by:

    (a)embarking upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

    (b)acting recklessly, negligently or wantonly with matrimonial assets the overall effect of which has reduced or minimised their value,

    then such conduct in my view and the economic consequences which flow therefrom are clearly matters to which the Court may have regard pursuant to the provisions of sec. 75(2)(o).

  19. In my opinion the husband’s conduct does not amount to such wanton and reckless dissipation of funds as to attract the principle in Kowaliw. Nevertheless, I am satisfied and find that the husband expended significant funds on extravagant hobbies.  These funds were not returned to the joint account. 

  20. Other financial contributions which need to be taken into account include:

    ·in 1988 the husband acquired an insurance policy which he later cashed in in 1998 for $10,000.  He had no idea of the value of the policy at 1995

    ·the husband paid $1,800 for items such as a pram, cot and car seat for the baby

    ·approximately $1,000 was paid from the joint account for the wife’s HECS debt and $1,000 for university books

    ·however, the wife denied that there had been any contribution by the husband to her dental work worth $5,000.

  1. Between the time of his return from East Timor at the end of October 2001 and the separation at the end of December 2001 the husband agreed that he withdrew $12,000 from his personal bank account.  This was the account into which his employment income, both from the Defence Force and prior to that, had been paid since apparently around November 2000.  This was contrary to his evidence that his income had gone into the joint account.  When he closed the joint account in November 2001 it had a credit balance of $800.

  2. When they separated in December 2001 the wife’s savings account held $2,500.  She understood the balance on the mortgage to be approximately $115,000.  The wife also took a number of items of property with her, the most valuable being her Subaru car.  The husband was left with a fully furnished house and a motor vehicle.

Since separation

  1. Since separation the wife has been working as a nurse with an income of approximately $35,000 gross per annum.  The child Isabella has resided with her and she has been responsible for meeting all of Isabella’s financial needs.  This has included weekly childcare costs as the wife has been working full-time.

  2. She lives in the Wagga property included in the list of assets in which she has an equity of $35,750.  The husband has made no contribution to this at all. 

  3. The husband has been employed as a truck driver earning approximately $39,000 per annum.  He has also resided at the Holsworthy property.

  4. Significantly, the father has been reluctant to meet his obligations to provide child support for Isabella.  In total he contributed $4,390 over three years in child support.  $3,650 of this was under garnishee.

Non-financial contributions

  1. There is also some dispute over the non-financial contributions made by the parties to the relationship.  The wife contends that throughout the relationship she was responsible for doing the majority of the cooking and cleaning in the household.  The husband washed his own work clothes, but she did the remainder of the washing.  Even while at university she was particularly conscious of doing all the household chores, including cleaning and preparing the meals for her husband.  She also washed the dishes.

  2. She accepted under cross examination that the shopping was done jointly.  She also conceded that for the six month period when she was working as a dental nurse in North Sydney her husband did the cooking.  Her husband helped a little with the housework and cooking generally, but he was rarely able to as he was working long hours for six or seven days a week.

  3. In his affidavit evidence the husband asserted that he did most of the cleaning and cooking when his wife was at university.  He deposed that throughout the relationship he was responsible for 75 per cent of the cooking and the majority of the housework.  This included providing his own meals, 80 per cent of all the weekly shopping and 60 per cent of the dish washing.  He did all of the maintenance on the house and in the garden.

  4. Under cross examination the husband was prepared to accept that the cooking was shared about equally.  But he agreed that his wife did most of the housework, even when she was at university.  He eventually accepted that the housework was fifty-fifty, although the wife washed most of the clothes with him just looking after his work clothes.  He maintained that he did most of the weekly shopping Sometimes his wife helped out.

  5. There was no dispute that the wife had been the primary carer of the child since she was born in September 2001.  Indeed at that time and until the end of October 2001 the husband was in East Timor.

  6. My clear impression from the husband’s evidence was that he was trying to minimise the wife’s contribution to the household.  Under cross examination he backtracked from some of his earlier positions and conceded a larger role for his wife. 

  7. For reasons that I have given earlier I found the wife’s evidence more convincing.  In my view she contributed substantially more to the household duties in cleaning, cooking, washing and so on, than her husband.  They shared responsibility for shopping and the husband undertook garden maintenance. 

  8. From April 2001 until the husband’s return from East Timor at the end of October 2001 the wife had sole responsibility for all household tasks.  On the other hand during the six months from April 1996 to December 1996 when the parties had separated temporarily, the husband was solely responsible for all tasks associated with maintenance of the Holsworthy property.  The wife was her primary carer for Isabella from her birth in September 2001.

Conclusions on contributions from commencement of cohabitation

  1. The period of cohabitation was only relatively short, amounting to about five and a half years over a six year period during which the husband was also posted away to East Timor for approximately six months.

  2. I am satisfied that during that period the husband’s financial contributions should be given more weight than those of the wife.  In the main, this is because

    ·for significant periods the wife was making a much lower or no contribution to mortgage payments

    ·the wife made no payments into the joint account from September 2000

    ·the husband’s income was considerably greater than the wife’s.

  3. On the other hand, I have found that the husband expended significant funds on extravagant hobbies.  These funds were not returned to the joint account. 

  4. Furthermore, in my view the wife made a greater contribution as a homemaker and later as a parent than did the husband.

  5. Very significantly, for the three years since separation the wife has been the sole financial provider for the child, except to the extent that her husband has reluctantly paid child support totalling $4,390.  The husband has had little contact with his daughter.

  6. The wife also purchased the Wagga property after separation which has been included in the list of assets and in which she currently holds an equity of almost $36,000.

  7. In the result I make a contribution based adjustment of 15 per cent in the husband’s favour.  The pool is in the order of $387,000, so this is equivalent to about $116,000 between the parties’ entitlements on a contribution based division. 

  8. In reaching this conclusion I have had regard to the principles in Pierce v Pierce ((1999) FLC 92-844) on the weight to be attached to parties’ initial contributions. The husband’s house is the most significant asset in the pool. Thus, notwithstanding the wife’s contributions as a parent over more than three years after separation, an adjustment should be made in the husband’s favour.

Section 75(2) factors

  1. Since separation the husband has had the benefit of occupying the former matrimonial home, but the associated responsibility of meeting mortgage payments on that home.  The current mortgage is $114,000.  About three months after separation the wife purchased her first home in Wagga and has since occupied that home and one she subsequently bought to replace it.  This house is also subject to a mortgage, in this case currently approximately $154,000.

  2. The wife’s weekly salary is $780, which is supplemented by a family tax benefit of $80 per week.  This income is as a registered nurse.

  3. The husband is employed as a driver with gross weekly earnings of $750.  He has no additional income.  It was put to him in cross examination that $750 a week or approximately $39,000 per annum was significantly less than he had been earning in previous years where he had been grossing approximately $50,000 per year.  He accepted this, the reason being that there had been a significant amount of overtime.  He also conceded that he could obtain overtime now if he wished.  This would allow him to increase his current income.  But he would not do this because it would mean he would have to pay extra child support.

  4. The husband is also in a new relationship with his de facto partner who earns $465 per week.  She does not share household expenses nor does she contribute to the mortgage.

  5. I accept as Ms Tonkin submitted that the husband has a capacity to earn a greater income which he is deliberately refusing to do.  Equally I accept that when Isabella commences school in a couple of years the wife will have the potential to earn a higher income, perhaps as much as $50,000.

  6. While the future cannot be predicted I propose to proceed on the assumption that the present arrangements with the child will continue until she reaches the age of 18 years. This means in effect that the mother will continue to have responsibility for more than a further 14 years. The child is not yet four. This in my view is by far the most significant factor under s.75(2).

  7. Based on the August 2004 quarter figures from the Lee scale on the costs of children, a child of Isabella’s age would involve a total expenditure of $217.12 per week or roughly $11,300 per annum.  The figures in this scale relate to a one child one income family with an income of about $900 gross per week.  Of course, as the child grows older total expenditure on her will increase.

  8. The way things are at present the mother will have total responsibility for the financial needs of the child.  It is clear from the evidence that the husband has been extremely reluctant to provide child support.  Over the last three years he has paid only $4,390 of which $3,650 has resulted from a garnishee.  He made it absolutely clear in his evidence that he would do what he could to avoid having to make payments to the Child Support Agency.  In my view he was intent on avoiding his responsibilities for the child and he will continue to follow this pattern in the future.  The wife is unlikely to receive any financial support from him for the child.

  9. In addition the wife having care of the child will be faced with limitations on what she is able to do.  She will also have to arrange childcare while she is in full-time work.  As the child is less than four her responsibilities will continue for more than another 14 years.

  10. It is not necessary to make any adjustment for the parties’ superannuation assets as they are roughly comparable; the husband’s being $18,300 and the wife’s $16,040.

  11. Having regard to the considerations set out above, in particular the responsibility of the wife for child rearing for another 14 years with the likelihood that she will receive little financial support from the husband, given his woefully inadequate provision in the past, it is my view that a significant adjustment should be made in favour of the mother.  I propose to make an adjustment of 25 per cent in her favour under this subsection.

Overview

  1. For this exercise I am not concerned with precise figures. The end result of examination of the contributions and s.75(2) factors is that an adjustment should be made in favour of the wife whereby she receives 60 per cent of the pool and the husband 40 per cent. In money terms this results in the wife receiving in the order of $232,000 and the husband in the order of $155,000, a difference of about $77,000.

  2. Taking all matters into account and in particular the fact that the wife will have care of Isabella, this is in my view just and equitable. It will enable the wife to discharge the mortgage on her Wagga property and perhaps pay off her HECS debt. This will free up at least a further $250 per week, which currently is paid in mortgage instalments. This amounts in my view to a just and equitable result within the meaning of s.75(2).

Conclusion

  1. The pool is $387,271.  The wife’s 60 per cent of this amounts to $232,363.  She has net assets in the pool currently totalling $73,190.  The husband’s 40 per cent amounts to $154,908.  He has net assets currently of $314,081.  This leaves a balance of $159,173, which I round off to $160,000, to be paid by the husband to the wife.

  2. In the event that the husband is unable to pay the wife $160,000, the Holsworthy property is to be sold and 41 per cent of the gross proceeds is to be applied to the wife. $160,000 represents 41 per cent of the property’s agreed value of $390,000.

  3. The orders of the Court will be as set out at the commencement of these reasons for judgment. 

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:  Zhan Chiam

Date:  9 August 2005

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S and S [2002] FMCAfam 295