DDM and GAJ - [2003] FMCAfam 229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DDM & GAJ

[2003] FMCAfam 229

FAMILY LAW — Property settlement — short marriage, no children — whether s.79(2) is an independent consideration — whether s.79(2) amounts to a “fourth step” in the property settlement exercise — effect of financial gifts to adult children during the course of a marriage or relationship.

Applicant:

DDM

Respondent:

GAJ

File No:

MLM 6500 of 2002

Delivered on:

15 May 2003

Delivered at:

Shepparton

Hearing Dates:

14 & 15 May 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Ms Phelan

Solicitors for the Applicant:

Suzanna Sheed & Associates

Counsel for the Respondent:

Mr Holmes

Solicitors for the Respondent:

Morrison & Sawers

ORDERS

The husband do pay to the wife the sum of $105,555.00 (“the payment”) on 30 June 2003 (“the date”).
Contemporaneously with the payment the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her interest in the real property situated in Reed Street, Rushworth more particularly described in Certificate of Title Volume 7509 Folio 113 (“the home”).
In the event the payment is not made by the due date then the wife and the husband forthwith do all such things and sign all such documents to sell the home at a price and on terms to be agreed between the parties and in default of agreement at a reserve price to be set by the President of the Real Estates Institute of Victoria.
The proceeds of sale of the home be applied in the following manner and priority:
(a) Payment of selling costs;
(b)Payment of legal costs on the sale of the home; and
(c)Balance to be divided between the husband and the wife with 68.1% to the wife and the balance to the husband.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The furniture, personal possessions and like chattels in the matrimonial home are considered to be in the possession of the husband.
(b)Money standing to the credit of the parties in any joint bank account is to become the property of the husband.
(c)All insurance policies to become the sole property of the beneficiary named therein.
(d)Each party be solely liable for and indemnify the other against any liability encumbering the any item of property to which that party is entitled pursuant to these orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
All applications otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SHEPPARTON

MLM 6500 of 2002

DDM

Applicant

And

GAJ

Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

Before the court are the parties’ competing applications for property settlement. Neither party sought any orders in relation to spousal maintenance. The orders sought by the parties are, in essence, those set out in their outline of case documents, although there was a variation to the orders sought by the wife presented to the court by her counsel during the course of the proceedings — in that the wife sought the payment of a fixed amount from the husband.
These Reasons are being delivered by me on an ex tempore basis after fairly limited time was made available to me to review the file and the evidence, and to consider my determination. Given that the Reasons are being delivered on an ex tempore basis, I reserve the right to amend the Reasons as I see fit, and to add to them where addition is necessary for the purpose of clarification.
The documents relied upon by the parties are those that were set out in their outline of case documents. The applicant wife relied upon her form 3 application, which was filed on 16 July 2002, her affidavit filed on 14 April 2003, the affidavit of the medical practitioner William Ivan Byrnes (which was filed on 10 April 2003), and her form 17 financial statement — which was filed on 15 April 2003.
The husband relied upon his response (which was filed on 6 August 2002), his trial affidavit (which was filed on 1 May 2003) and his form 17 financial statement filed on 1 May 2003.
The background to this matter is not complicated. For the purposes of these Reasons I shall rely upon the chronology prepared by the husband’s solicitors and appearing in his outline of case document.
The husband was born in February 1936 and the wife was born in August 1945. The husband had been married and divorced on two occasions in the past, and has five children by his previous relationships. The wife had also been married before. Her first husband died in a truck accident in February 1996. She has three children.
As a result of the tragic and untimely death of the wife’s first husband, she received certain payments — which are described in detail in the affidavit material which has been filed on behalf of the parties.
The husband had retired from work in May of 1992.
The parties married on 1 August 1998. Clearly, they had some form of relationship prior to marriage, although it would appear that they did not cohabit at that stage. I say that they clearly had some form of relationship not only because people do not ordinarily marry not having known each other beforehand, but also because the evidence reveals that the parties had entered into a contract with a building company for the construction of a home on a block of land owned by the husband and that the initial payment in relation to the construction of the house was made in June of 1998 — some two months, at least, before the parties were married.
The construction of the home took place from mid to late 1998 through until August or September 1999. The parties moved into their new home (which had been constructed on the block of land previously owned by the husband) in or about August 1999. The husband asserts that he suffered a nervous breakdown in September 2001. No evidence of a medical nature was presented to the court on behalf of the husband dealing with this assertion. I do not know whether or not he suffered a nervous breakdown. At the end of the day, however, I find that that is not a particularly relevant fact, in the sense that it is not one that would have any effect upon the matters that I must determine in relation to the issue of property settlement.
Suffice it to say, however, that during the course of 2001 the marriage appears to have deteriorated, and at the end of November 2001 there occurred a very ugly incident — which has been described by the parties in their affidavit material and which involved serious violence perpetrated by the husband against the wife. There appears to be no doubt that the husband is remorseful regarding the actions that he took on that occasion, and the assault has been dealt with in another place. Once again, in my view, that fact — although it set the scene for the separation of the parties which occurred shortly afterwards — is not relevant to the matters that I must determine in relation to the issue of property settlement.
According to the husband, the parties separated on 12 January 2002. According to the wife, they separated in December 2001. In my opinion, nothing turns on the difference between the parties’ version of events in this regard.
Since the date of separation the husband has remained living in the former matrimonial home, and the wife has acquired a property in Mooroopna. The parties appear to have divided the furniture that was previously in the former matrimonial home. As I understand matters, no orders are sought in relation to chattel items. Certainly, no court time was spent upon such issues.
In November 2002, the husband pleaded guilty to assaulting the wife. That plea was taken in the State Magistrates Court in Shepparton. The presiding magistrate appears to have dismissed the charge — no doubt after hearing a plea in mitigation.
Before proceeding further in these Reasons, it is appropriate that I comment upon the credibility of each of the parties. I observed both parties carefully as they gave their evidence in this matter. I have also read the affidavit material that they have presented to the court. To a large extent, both parties did their best to be frank and open. In my view, however, neither party gave a balanced account of the history of the relationship. I find that neither party was willing to give credit where it was due. Both parties’ trial affidavits were relatively balanced, but neither was prepared to concede a great deal as far as the contributions of the other party were concerned.
It is an unfortunate fact in this case that the affidavit prepared on behalf of the husband did not deal directly with the matters contained in the affidavit of the wife, and the affidavit of the wife did not deal directly with the matters contained in the affidavit of the husband. It is apparent, however, that both parties bear resentment towards each other and both, in my view, are embittered by what they perceive to be an unfair situation. I am of the view that the negativity of the parties’ cases may well be related to (and, perhaps, some form of manifestation of) the medical problems which each has suffered over the last few years, and which each continues to suffer.
The parties have done their best to provide evidence which is accurate. I am satisfied, however, that their perception of relevant events has been distorted by the overlay that adheres as a result of the resentment that each bears towards the other. It follows, and I find, that neither was able to provide an objective and unbiased account of the broad scope of the relationship and their respective roles within it.
As a result of what I have just said, I find that it is appropriate for me to discount certain of the evidence of each of the parties. Where I have preferred the evidence of one or other of the parties I shall endeavour to say so.
The general approach that should be adopted by the court in relation to a property settlement application has been described in a large number of cases (see, for example, Pastrikos (1980) FLC 90-897, Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335, Davut & Raif (1994) FLC 92-503, Clauson (1995) FLC 92-595 and Whitely (1996) FLC 92-684). The court must first identify the assets of the parties. It must then attribute a value to each of those assets, usually as at the date of the hearing. Thereafter, it must assess the extent of each party’s contributions under the various subheadings described in section 79(4) of the Family Law Act. Finally, the court must consider the financial resources, means and needs of the parties, and the other matters set out in section 75(2) so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to section 75(2) factors. It is not essential, however, that such an adjustment take place. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means.
In relation to the contribution of the parties under section 79(4) generally it has been held that a global approach will usually be more convenient than an asset by asset approach, although the application of an asset by asset approach does not of itself amount to an error of law (see Norbis (1986) FLC 91-712).
Section 75(2) is concerned with the process of arriving at a just and equitable result. It follows that there may be circumstances in which the justice and equity of the case, and the specific provisions of section 75(2), support an adjustment in a party’s favour for matters which cannot comfortably be described as of economic or financial significance (see McMahon (1995) FLC 92-606 at 82-043).
Under section 79(2), the court is required to be satisfied that the order to be made is just and equitable — not simply that the underlying percentage division of the net value of the parties’ assets is appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings is just and equitable, it is the justice and equity of the actual orders, and not of the percentage distribution, which must be considered[1].
[1] See W & W (1980) 6 FamLR 538 at 549, Henderson (1987) FamLR 529 at 537, Clauson (1995) 18 FamLR 693 at 704-6
During the course of the trial counsel for the husband submitted that the issue of justice and equity referred to in section 79(2) might be an independent consideration — separate from the usual steps in the property settlement exercise to which I have made reference.
There have been cases in which the application of the consideration as to whether an order is just and equitable has been described as the fourth step in the property settlement exercise. In such a scenario, the first step would be described as the identification of the parties’ assets and the placing of a value on those assets; in other words, the description or the ascertainment of the asset pool. The second step is the contribution exercise. The third step is the application of the section 75(2) factors.
I made reference, however, to the commentary contained in volume 1 of the Butterworth’s Australian Family Law Service regarding the question of whether section 79(2) can be considered a “stand alone” concept. It is clear, in my view, that the authorities support a conclusion that section 79(2) is not a fourth step in the property settlement exercise, and that there is no fourth step in that sense.
I have already referred[2] to the case of Russell[3], in which consideration was given to precisely that question. It has been considered in other cases as well[4].
[2] during the hearing
[3] (1999) FLC 92-877 (at 86,439)
[4] see Russell (1999) 25 FamLR 629, JEL & DDR (2000) 28 FamLR 1 and Phillips (2002) 29 FamLR 128
The problem with considering section 79(2) as a stand alone requirement or consideration is that it is impossible to determine what factors may direct the court in its consideration of what may or may not be a just and equitable result in proceedings. Nygh J, in early cases, referred to concepts such as “palm tree justice” or “a soup kitchen approach” in relation to subjects such as these. In other words, his Honour was saying that it is impossible to simply look at the question of whether an order or a result is “just and equitable” without measuring or assessing that consideration by some yardstick. The approach set out in section 79 requires that the court use the considerations in section 79(4) as the yardstick, and not other (undisclosed) considerations.
Counsel for the husband also argued that a fair and proper determination of the wife’s entitlement might be arrived at by applying some form of “needs” test. I do not wish to labour this subject, but I do refer counsel and the parties to the Full Court decisions in Lee-Steere (to which I have already made reference) and Figgins[5]. In those cases the Full Court emphatically rejected the concept of property settlement being based upon a party’s needs (as opposed to the factors otherwise set out in section 79 of the Family Law Act), and explained how section 79(2) might actually operate. I refer, as well, to the Full Court’s decision in Russell (1999) FLC 92‑877, at paragraph 80:
It must be remembered in this regard that under section 79(2) of the Act the court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed, we take the opportunity to emphasise that in what his Honour has termed "the fourth stage", that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders, not of the percentage distribution which must be considered.
[5] (2002) FLC 93-122
In other words, the determination of the proportionate or other split of the property between the parties is concluded before one looks at the justice and equity of the actual orders that are utilised to effect that distribution.
I wish to make passing reference, as well, to the law in relation to contribution factors. The cases of Money[6], Bremner[7] and Pierce[8] make reference to the approach that the court must take in relation to contribution. There are many other cases, of course, that also deal with the subject — but these cases identify that the court must recognise that financial contributions are extremely important in a “short marriage” (or, more correctly, a “short relationship”) case and that other contributions must be looked at in the context of whether they dilute, erode or otherwise diminish (as it were) significant financial contributions. In short marriages, the difficulty that parties face is that the period of the relationship may not be sufficiently long to enable major financial contributions made by one party to be effectively or substantially eroded, diluted or diminished in the broadest sense. Inevitably, much depends upon the nature and quality of the offsetting contributions made by the other party, but there can be no doubt that in a short marriage (or, more accurately, a short relationship) a significant initial financial contribution is a very important factor indeed.
[6] (1994) FLC 92-485
[7] (1995) FLC 92-560
[8] (1998) FLC 92-844
I turn now to consider the property of the parties at trial. During the course of the trial the identity and value of each item of property was agreed. I find that the parties’ assets and liabilities at trial are those that are set out in the document headed Schedule of Assets and Liabilities (Final Version) as prepared by me during the course of the proceedings and as adopted by counsel. It is clear from that schedule that the total value of the assets presently available for distribution between these parties is $368,149.00.
I turn now to consider the contribution issues. Firstly, I observe that, on the basis of the evidence now before me, there was no period of cohabitation between these parties prior to marriage. At the date of the marriage, which was also the commencement of the parties’ cohabitation, the wife had a motor vehicle, furniture and the property at McKean Street in Mooroopna — which she later gave to her former brother-in-law. That property was never “brought into the marriage”, as it were. I will deal with it later in these Reasons.
In addition to her car and her furniture and the property to which I have just referred, the wife had an investment or investments totalling $180,000.00. She also had funds with Felthams, Solicitors, totalling $47,473.00 at the date of marriage. That figure I take from annexure DMD2 to the wife’s trial affidavit. The reality is, however, that shortly before the date of marriage — in fact, on 29 June 1998 — the wife had arranged for $3,000.00 to be removed from the Felthams account and paid to the builders of the former matrimonial home. It is the case, therefore, that in addition to the $47,473.00 that the wife had in the Felthams account, she also had the $3,000.00 — no doubt in the trust account of the builders, or otherwise utilised by them towards the construction of the home. If those moneys had not been removed from the Felthams account for that purpose, then they would still have been there and, accordingly, it is fair to say that the wife had something in the order of $50,473.00. In addition, the wife had some $5,000.00 in a bank account.
In available resources, therefore, I find that the wife had assets totalling $235,473.00 at the date of commencement of cohabitation. In addition, she had a motor vehicle, she had furniture and she had her interest in the McKean Street property. I have dealt with those separately and not included them in the total asset pool, because when one looks at the history of this relationship, and the assets that each now has, it is clear that the wife — although she has changed motor vehicles — came into the relationship with a motor car, and she leaves the relationship with a motor car. Similarly, she came into the relationship with furniture, and she leaves the relationship with furniture. Finally, she came into the relationship with the McKean Street property — but it was never “brought into the marriage” in any relevant sense, and she leaves the relationship without that property. Accordingly, the figure that I propose to work on is the amount of $235,473.00 — which may be regarded as having been available for the benefit of this small family.

At the commencement of cohabitation the husband had a car, a truck, tools and shares. He still has a car, a truck, the same shares, it would appear, as he had at the commencement of cohabitation, and his tools. These remain intact, and I shall ignore them (for the reasons that I have previously given) for the purpose of the contribution exercise. He came into the relationship with them and he goes out of the relationship with them.
In addition, the husband had the property in Philip Street, Rushworth. The value of that property was $86,000.00 and I adopt the figure contained in the husband’s affidavit in that regard. He also had the block in Reid Street — worth $16,000.00. That is an agreed figure, but I am cognisant of the fact that it was on this property that the former matrimonial home was constructed. Although the value of the block may have been $16,000.00 at the commencement of cohabitation, that does not mean that the current value of the land is $16,000.00.
The husband had other funds. The sale of his furniture netted an amount of $1,600.00, and I take that sum into account as funds available to him at the commencement of cohabitation. He had a Commonwealth Bank account of $1,400.00, a National Australia Bank pension account of $2,500.00, a National Australia Bank cheque account of $10,919.00, a Banksia investment of approximately $10,000.00 and an AMP policy of $3,192.00. In relation to that final item, I note that the husband was not cross-examined in relation to it and I therefore accept that the husband had that asset. Thus, the value of the assets available for distribution, if you like, or use within the marriage that the husband then had was $131,611.00 — and I invite counsel to check my arithmetic as we proceed through these Reasons.
If I total those two figures — that is, $235,473.00 available to the wife and $131,611.00 available to the husband, then they amount to $367,084.00. In other words, the total of the funds and assets available to this couple was $367,084.00. In percentage terms, and to the extent that it may be relevant, it is clear that the wife brought into the relationship approximately 64% of the available funds or assets and the husband brought into the relationship approximately 36% of the available funds or assets.
During the marriage there were further contributions. Firstly, and as I have already referred to, there was the property at McKean Street — and I apologise if I have the name wrong but the parties will be able to identify the property — which property was given to the wife’s former brother‑in‑law. It is clear from the evidence of the wife that she felt that she had a moral obligation to give this property to her former brother‑in‑law. I listened carefully to her evidence and can well understand the obligation that she felt. The husband conceded that it was the wife’s right to give the property away if she was minded to do so. The evidence reveals that the property was never “brought into or otherwise utilised within the marriage”.
The evidence also reveals that the transfer of the property to the wife’s former brother‑in‑law may have cost the wife some money and the husband some effort. I refer here to the husband’s statement in his affidavit to the effect that he believes that some stamp duty may have been paid, and to his evidence regarding the installation of a security door. Still, the husband’s evidence in relation to the stamp duty was simply that he believes that that amount had to be paid — and I recall it as being an amount of something in the order of $3,500.00. A statement of belief in an affidavit is of little or no evidentiary value. The husband provided no evidence of the payment of stamp duty and the wife was not cross‑examined on the subject. At the end of the day, and taking into account all the evidence that I have heard, I am of the view that this property is an irrelevance in the context of these proceedings. Although the wife owned it, it was never brought into or utilised within the marriage. Nor was it treated as a “resource” by either of them.
In June of 1999 the wife received an inheritance from her sister. There can be no doubt that the husband made no contribution whatsoever to this inheritance. The amount that the wife received was just under $86,000.00, and for the sake of these Reasons I will refer to the amount of the inheritance as $86,000.00. The wife was cross-examined regarding what happened to these moneys, but I am satisfied that the explanation that she gave was a proper and credible one. I accept that she gave members of her family a total of some $37,000.00. Relevantly, she gave to each of her children an amount of $10,000.00.
During the course of the hearing yesterday, I referred counsel to the decision in Cerini[9], where the Full Court spoke of the way in which relatively modest gifts to adult children should be regarded. In this case, the husband and the wife already had adult children by other relationships at the time that they married. The wife’s inheritance was hers to deal with as she saw fit. If it is not unreasonable to expect parties to give amounts of money to their adult children after separation — and that was the situation recognised in Cerini — then, a fortiori, in my view it is not unreasonable if parties give gifts to their adult children during the course of a relationship.
[9] (1998) FamCA 143 (unreported)
The situation might have been different if the parties had very little funds and were struggling financially, and if, as a result of a gift of this nature, the contributions of the other party were made more significant or more onerous. That cannot be the case here. Accordingly, I am of the view that the fact that the wife saw fit to give money to her children, and to others, is an irrelevance for the purpose of these proceedings.
The evidence reveals that the wife also purchased a motor vehicle from these funds. This, clearly, differed from the motor vehicle that the wife brought into the marriage, and differed again from the motor vehicle that the wife now has. To the extent that it might be relevant to my consideration in this matter, I find that the wife’s decision to trade in a larger car, albeit a new one, for a smaller car that is more convenient for her to run was a perfectly reasonable and appropriate one.
As I indicated earlier in these Reasons, it seems to me to be unnecessary to trace through to any great extent the funds that went backwards and forwards, or in and out, in relation to the acquisition of motor vehicles — but in this case the evidence reveals that the wife utilised some $13,500.00 from the inheritance that she received from her sister to buy a car. If I deduct the gifts that the wife gave to her family and the amount that she spent on the car, it is clear that some $35,500.00 became available to the wife for utilisation within the relationship.
During the course of the marriage, certain other funds were received by the parties and these were referred to in the affidavits. I refer specifically to the refunds that the parties received from the builders of the former matrimonial home, or from other sources. In my view, the refunds are an irrelevance. The fact of the matter is that the parties had already paid moneys to one or other of these sources in order to receive a refund — so the moneys came from funds already contributed. As a result, they simply do not affect the overall calculations.
The main asset acquired by these parties during the course of their relationship was the former matrimonial home. The evidence clearly reveals that from the funds available to her, the wife contributed the following payments: firstly, the $3,000.00 to which I have referred, and then payments of $24,870.00, $14,922.00, $32,333.00 and $13,532.00 — or a total of $88,657.00 directly towards the contract price of the home. The husband contributed an amount of $9,948.00 towards the construction of the home. But that was not all that he contributed. He also contributed the block upon which the former matrimonial home was constructed and, in addition, he contributed his work and labour — which went in to the construction of the home. He also contributed certain moneys to which I shall refer in just a moment.
In addition to the $88,657.00 contributed by the wife from her own funds to the contract price for the construction of the former matrimonial home, the wife also contributed the moneys referred to in her affidavit — totalling $39,940.00. The wife prepared a schedule itemising the amounts that she contributed. In paragraph 19 on page 5 of his affidavit, the husband disputes certain of these amounts. The amounts that he disputes total $3,617.00. Even if I allow that sum in full, it is clear that, over and above the $88,657.00 to which I have referred, the wife contributed something in the order of $36,000.00. In other words, from her available funds the wife contributed a total of something in the order of $124,657.00 — even on the husband’s figures. In addition, the wife contributed some work and labour towards the construction of the home.
The husband, as I indicated, contributed the block. He contributed $9,948.00 from available funds and, according to his affidavit material, he also contributed some $32,300.00. When I look at his schedule, however, it is clear that the $32,302.00 includes the $9,948.00 that the husband paid towards the contract price for the construction of the former matrimonial home. It also includes certain figures that the husband has referred to in paragraph 21 on pages 5 and 6 of the affidavit. He said in that paragraph, “I received four payments towards these costs,” and the expression “these costs” clearly refers to the $32,302.00 mentioned in the preceding paragraph.
When I have regard to those sums, it is clear that they are, in essence, rebates or other allowances, or a payment from the wife. To take these sums into account would be, to put it colloquially, “double dipping”.

I therefore propose to deduct these figures from the amount of $32,302.00 that the husband contributed. The total of the figures referred to in paragraph 21 of the husband’s affidavit is $14,554.00. Given that the $32,302.00 included the $9,984.00, it is clear that, in a financial sense, the husband contributed an amount of $17,748.00 (being $32,302.00 less $14,554.00) from his available resources — looking at it from the point of view of his own “best case scenario”.
In addition, and as I have recorded, the husband contributed the block upon which the former matrimonial home was constructed, and very significant work and labour. The wife eventually gave credit to the husband where it was due for the work and labour that the husband put in to the construction of the former matrimonial home and its improvement.
It can be seen from the figures to which I have referred that if the wife did contribute something in the order of $125,000.00, and if the husband contributed something in the order of $18,000.00 and if the block had a value of some $16,000.00 (which really does not allow for any capital appreciation of land at all) then the total of those figures is about $159,000.00 — which more or less equates to the current value of the home (which has an agreed value of $155,000.00). If that were indeed the case, then it appears that the home has not increased in value over and above the contributions made to it. If, however, I look at percentages, then it is clear that the wife’s contribution to that $159,000.00 total figure — which, as I have indicated, may not tell the full story — is something in the order of 78.6%.
During the marriage, both parties contributed in a financial sense from funds that became available to them. I have already made reference to the inheritance that became available to the wife. The wife had the benefit of pension entitlements, as did the husband. In that regard, there can be no favouring of one party over the other insofar as financial contributions during the marriage are concerned. It is true that the husband also received a carer’s pension for a period during the relationship. It is clear, however, that the amount that the husband received as and by way of the carer’s pension was not significant in the context of these proceedings and the asset pool that is available for distribution between the parties.
I do not accept the husband’s assertion that the wife wasted moneys. In my view, the wife had every right to assist her family to the extent that she did. I am conscious, as well, of a degree of hypocrisy associated with the husband’s approach. He complained “long and loud” about the wife’s daughter attending at their home and eating their food, but it is clear that the husband’s son also lived with the parties for a period of some three months. Quite what contributions the son made during that period, I do not know, and no evidence was presented to me in that regard. But on the basis of the material now before me, I find that it is likely that he made no financial contribution during that period. Further, the husband has chosen, at times in the past and up to the present time, to use his labour to assist others and to receive nothing in return.
There is no evidence of moneys that have been used inappropriately by the wife, or otherwise wasted. Even if some moneys were wasted or given away, I find that the amounts involved were insignificant in the context of the overall asset pool in this case.
I turn now to the non‑financial contributions made by the parties to the assets — that is, the contributions under section 79(4)(b). There can be no doubt that the wife was unwell during the course of the relationship. I find, however, that she did whatever she could do around the house and outside the home to assist in the construction of the former matrimonial home and its improvement. I find, however, that the husband made a much more significant contribution than did the wife to the construction and improvement of the home.
The fact of the matter is that this was a short marriage (and relationship), and that the only asset of any real significance is the former matrimonial home. I do not ignore the funds now held by the husband, but if consideration is given to assets to which the parties may have jointly contributed, then the only real asset for analysis is the former matrimonial home. I find that this factor (being the “parties” contributions — in all their various guises — under s.79(4)(b)) favours the husband to a considerable extent. He set out in his affidavit the sort of work that he did, and I find that he has accurately described that work.
I have already referred to the notional contribution that the parties made — in a financial sense — to the former matrimonial home, and I concluded that, in a purely financial sense (and attributing the agreed value to the block), the wife contributed some 78% towards the purchase and construction of the home, and the husband 22%. When I have regard to the work and effort that the husband put in to the construction of the home and to the fact that the home was built on the land that he owned prior to the marriage — in relation to which there may have been capital appreciation since that time — I find that a fair allowance for contribution in relation to the home would be something in the order of two‑thirds to one‑third in the wife’s favour. In other words, taking into account all the contributions that the husband made, his notional entitlement, would move from something in the order of 22% (which was his entitlement on the basis of financial contribution alone), to something in the order of 33.3% (taking into account his non‑financial contributions to assets).
But that is not the end of the contribution exercise. The court must also consider the contributions that each of the parties made to the welfare of the family which was constituted by the husband and wife.
There can be no doubt that each contributed to the welfare of the family to the extent to which he/she was able. Due to the wife’s ill health, however, it became necessary for the husband to take a more significant role in this area than did the wife. To make such an observation is not to be unfair to the wife, or to unduly minimise the contributions that she made in this regard.
In my view, the evidence inexorably leads to a conclusion to the effect that the husband’s contributions to the welfare of the family during this short marriage outweighed those of the wife. She certainly did what she could and, in my view, she did more than the husband was prepared to concede that she did. I find, however, that the husband did do the majority of the cooking, that the husband assisted around the house and outside the home, and that the husband assisted the wife as a carer when required — and the wife gave him credit in that regard during the course of her evidence.
I have taken into account, as well, the fact that the parties resided in the husband’s home for approximately the first year of the marriage. That is a contribution that the husband made to the welfare of the family. Since separation, however, the husband has had exclusive occupation of the former matrimonial home. The wife, on the other hand, has had to obtain other accommodation. True it is that the husband appears to have paid the rates and taxes and other outgoings associated with the former matrimonial home, but my attention was not drawn to evidence which identifies the quantum paid by the husband in that regard.
There are different ways in which I can give consideration to the fact that the husband has had the exclusive occupation of the former matrimonial home since the date of separation. It can be regarded as a contribution factor under the general heading of “contribution to the welfare of the family”, or it could conceivably be regarded as a factor to be taken into account under section 75(2)(o). In my view, it is all a question of swings and roundabouts, to use the vernacular, and I elect — even if I am incorrect in doing so — to treat that issue as one which is proper to deal with under the general heading of contribution.
The wife’s occupation of the husband’s home at the commencement of the relationship and the husband’s exclusive occupation of the former matrimonial home after separation cancel each other out to some extent. But, in my view, the contribution made by the wife in permitting the husband to continue to reside in the former matrimonial home since separation amounts to a greater indirect contribution to the welfare of the family on the part of the wife than the husband’s contribution of a place to live at the commencement of the marriage —because, of course, during that period the husband also resided in the house.
Having regard to the short period of the relationship, I conclude that there is a slight imbalance in the husband’s favour in relation to this area (being contributions to the welfare of the family), and if percentages were necessary, it would be something in the order of 55% to the husband and 45% to the wife, although I note that the differential between those two figures is some 10%.
The question of how to deal with the totality of the contribution factors in this case is a very difficult one. Doing the best that I can with the evidence available to me, I have decided to approach the issue of contribution with some semblance of structure, and as rationally as I can. In order to do it consistently with the approach that I have taken to date in these Reasons, I propose to regard the asset pool as comprising the assets set out in the Schedule (Final Version number 2), totalling $332,088.00.
When I have regard to the various contribution factors to which I have already made reference, and in particular the initial financial contributions of the parties, the additional financial contribution made by the wife during the course of the marriage in the form of her inheritance, the contribution by the husband of the block upon which the home was constructed and the significant work and labour that he put in to the construction of the home (but without ignoring any of the other factors to which I have referred above), I conclude that an appropriate division of the parties’ assets available for distribution between them as described in the Schedule, and on the basis of contribution alone, is approximately 60% to 65% to the wife, and the balance to the husband.

I find that it would be intellectually dishonest for me to adopt one or other of the percentages to which I have referred in preference to the other. I therefore adopt a midpoint position of 62.5%.
So far in considering the question of property settlement, I have addressed the question of contribution only. Quite clearly, the court is entitled to make an adjustment to a party’s property settlement entitlement on the basis, inter alia, of both parties’ respective means and needs. The Family Court has been critical of shorthand terms being used to describe this last step in the property settlement exercise preferring to refer to it simply as the section 75(2) factors (see Clauson (1995) FLC 92-595). In essence, section 75(2) is concerned with the process of arriving at a just and equitable result (see Waters v Jurek (1995) FLC 92-635).
I do not propose to review all the evidence in this case as it may relate to section 75(2).
Neither party seemed to suggest that the factors under section 75(2) should lead to any significant adjustment to the result achieved on the basis of contribution alone. The factors as set out in the husband’s outline of case document are, firstly, and in relation to section 75(2)(a), that both the husband and the wife are ill and unable to work. They are both in receipt of Centrelink benefits. Having seen and heard the parties, and having regard to their state of health and their ages, I find that, in fact, neither is realistically able to obtain or maintain gainful employment.
Section 75(2)(b) is also referred to, and it is argued that neither the husband nor the wife will work in the future and that both will be dependent on Centrelink benefits for the remainder of their lives. That is true to a large extent, although the reality is that each of these parties will be left with relatively significant assets as a result of these proceedings.
Section 75(2)(f) is also referred to, and the statement is made that each of the parties receives Centrelink benefits.
Section 75(2)(g) is referred to, and it is recorded that the husband has remained in the former matrimonial home. The wife has purchased a unit in Mooroopna, and reference is made to her having given her interest in the other property in Mooroopna to her former brother-in-law. I have already discussed that gift. In my view, it is not a relevant consideration — either under the contribution factors or under section 75(2) factors.
The only other factor referred to is section 75(2)(p). The statement is made that there are no financial agreements between the parties.
During the course of his submissions to me, Mr Holmes stressed the need for any orders to be made in these proceedings to be just and equitable. I am well aware of that obligation. I am also well aware, however, of the state of the law as I have described it to be earlier in these Reasons. I cannot adopt what Nygh J described as “a soup kitchen approach”, nor can I do what is described elsewhere as “palm tree justice” between these parties.
Taking into account all the factors in this case, I conclude that the section 75(2) factors ought not to lead to any further adjustment between these parties. I am conscious of the likely imbalance in capital resources between the parties, and I am conscious of the fact that any orders that I make may have the unintended consequence of the home having to be sold, but, in my view, it is necessary to bear in mind the fact that the wife brought significant assets into the marriage in the manner that I have described. It is also necessary to have regard to the fact that the former matrimonial home was constructed only very recently, and that prior to that time, the husband was living in other accommodation.
Just as the Full Court has said in other contexts — in relation to, for example, farming property — there is no “quarantined” property in property settlement cases[10]. What the court can do, however, is to adjust the format of the orders to be made in order to avoid any relevant injustice of inequity.
[10] see, for example, Guthrie (1995) FamLR 781 at 784, 794-5 and Figgins (2000) FamLR 544 at 558
If the wife is entitled to 62.5% of the asset pool that I have used in the latter part of my reasons, then it is clear that she is entitled to 62.5% of a total amount of $332,088.00. It follows that the gross amount that the wife should receive is $207,555.00. The value of the assets that the wife has retained is $102,000.00. Therefore, the amount that must be paid by the husband to adequately meet the wife’s entitlement by way of property settlement is $105,555.00.
It is true that the court must look at the justice and equity of the orders. I pause at this stage, therefore, to look at the effect of the orders that are to be made on the basis of the conclusions that I have reached. The husband currently has available to him — if one includes the former matrimonial home — assets worth $246,149.00. If I order him to pay the amount of $105,555.00, then it is clear that he will be left with assets totalling $140,594.00. That can be compared with the assets that he brought into the marriage — which assets were then worth (in money terms) about $131,611.00 (plus car, truck, shares and tools).
On the other hand, the wife comes out of the marriage with $122,000.00, plus the amount that I have ordered the husband to pay (being $105,555.00) — which totals $227,555.00. This can be compared with the amount that she brought in — being $235,473.00 (plus car, furniture and, to the extent that it may be relevant, the McKean Street property). When looked at in this context it is clear that both parties have gone slightly backwards from the position in which they were at the commencement of their relationship, but that the proportions between them remain somewhat similar. That is not the full story, however, because during the course of the marriage the wife received the moneys from her sister’s inheritance, and the husband made the contributions to which I have referred to the construction and improvement of the former matrimonial home. I have borne in mind all the contributions made by both parties and referred to in these Reasons. But, generally speaking, that is the result of the orders that I make.
During the course of the proceedings, reference was made to certain moneys owed by the wife to her children or to other relatives. I have not ignored that evidence. I have concluded, however, that these are not formal debts — as was conceded by the wife’s counsel. The position is that if the wife saw fit to give moneys to her children, then she cannot be criticised for that. If she seeks to borrow moneys from the children instead of commencing proceedings to seek spousal maintenance or an order for exclusive occupation of the property, or assistance with the payment of her mortgage, then that is a decision for her.
I do not ignore the fact that the wife has had to borrow from her family due to the fact that the husband has had the exclusive use of the former matrimonial home. Nor do I ignore that he has had available to him his investment of some $72,000.00. But overall, in my view, those facts are not capable to altering the appropriateness and reasonableness of any of the conclusions that I have reached in these Reasons, or the justice and equity of the orders that I propose to make.
I shall now stand the matter down to enable counsel to draft orders that will have the effect of implementing the decision that I have reached.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Paul O’Halloran

Date: 30 June 2003