Drew & Drew

[2007] FamCA 810

FAMILY COURT OF AUSTRALIA

DREW & DREW [2007] FamCA 810

FAMILY LAW – APPEAL – PROPERTY – Whether trial Judge erred in assessing the contribution of the parties to the property pool – Wife asserted that the trial Judge erred in finding that there was a significant disparity in the direct financial contributions of the parties in favour of the husband – Various contributions of the husband has been “double counted” – Appeal allowed – Discretion re-exercised.

FAMILY LAW - COSTS – Both parties granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:  Ms Drew       

RESPONDENT:  Mr Drew

FILE NUMBER:  BRF 15024 of 2005

APPEAL NUMBER:  NA 30 of 2006

DATE DELIVERED:  31 July 2007

PLACE DELIVERED:  Brisbane

JUDGMENT OF:  Finn, Kay and Coleman JJ   

HEARING DATE:  22 November 2006

LOWER COURT JURISDICTION:  Family Court of Australia

LOWER COURT JUDGMENT DATE:  7 April 2006

LOWER COURT MNC:  

COUNSEL FOR THE APPELLANT:  Mr Murphy SC

(with Mr Waterman)

SOLICITOR FOR THE APPELLANT:  BL Crane & Associates

COUNSEL FOR THE RESPONDENT:  Mr Jordan

SOLICITOR FOR THE RESPONDENT:  Hosie & Partners

Orders

1. That the appeal be allowed.

2. That in addition to the orders made by the Honourable Justice Barry on 7 April 2006 the following order be made:

   “That within 3 months of the date of this order the husband pay to the wife the sum of $447,382 less any amount already paid by the husband to the wife pursuant to the orders of the Honourable Justice Barry made on 7 April 2006 and 3 May 2006.”

3. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

4. That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Drew and Drew.

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 30 of 2006         

FILE NUMBER:                   BRF 15024 of 2005

Ms Drew

Appellant Wife

And

Mr Drew

Respondent Husband

REASONS FOR JUDGMENT

1.This is an appeal by the wife against orders made by Barry J on 7 April 2006 in property settlement proceedings between the wife and the husband.

2.In broad terms, the effect of his Honour’s orders was to divide in the proportions of 70 – 30 per cent in favour of the husband a pool of property found to have a net value of $2,265,182. By far the greater part of that property had been accumulated in the six and a half years of the parties’ relationship.

3.The 70 – 30 per cent division was arrived at on the basis of a contribution assessment of 75 – 25 per cent in the husband’s favour, with a 5 per cent adjustment on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”).

the grounds of appeal in summary

4.In addition to asserting in her grounds of appeal that his Honour’s overall 70 – 30 per cent division fell “outside a reasonable exercise of discretion and/or is plainly wrong or manifestly unjust” (Ground 6), the wife also asserts error in his Honour’s assessment of the parties’ contributions at 75 – 25 per cent in favour of the husband (Grounds 2 & 3), and in his 5 per cent adjustment in favour of the wife on account of the s 75(2) matters (Grounds 4 & 5).

5.Further, the wife asserts that his Honour erred in failing to take into account the capital gains tax payable on a particular property which was to be retained by her under his orders (Ground 1).

6.It will be convenient to consider first the grounds of appeal directed to his Honour’s assessment of the parties’ contributions.  But before doing so, we will set out a brief history of the parties’ relationship. We will also set out the list of the parties’ assets as at the trial as found by his Honour.

History

7.The wife was born in January 1949 and the husband in March 1954.  They were thus aged 57 and 52 respectively at the time of the hearing before his Honour in November 2005.  They had both been previously married.

8.The parties had been in a de facto relationship from early 1994 until mid to late 1997.  At the end of that relationship, they had sold a jointly owned home and divided the proceeds equally.

9.His Honour found that the parties resumed cohabitation in June 1998.  They were married in December 1998 in New Guinea where the husband had taken up a highly paid position with an international company.  The wife had resigned her employment in Australia to join the husband in New Guinea.

10.The parties returned to Australia in December 2003 and finally separated in late 2004. 

11.In the period between the end of their de facto relationship in 1997 and the resumption of their relationship in June 1998, both parties had purchased separate properties.

12.The wife’s property was at [G] Drive in a western Sydney Suburb.  It had been purchased for a sum in the region of $160,000 - $180,000, with the wife providing $25,000 and her son approximately $5,000 and the balance being borrowed. This property was sold in May 2003 for an amount of $333,500, with net proceeds of $242,600 being received by the parties.

13.The husband had purchased a home at [D] Drive in a northern New South Wales coastal town for $305,000.  The purchase was funded by a bank loan of $260,000, with the balance coming from the husband’s savings and a termination payment.

14.During the course of the parties’ marriage, two further properties were acquired by them in the same northern New South Wales coastal town, at [R] Drive and [B] Street.  Details of those purchases will be referred to later.

The agreed assets and liabilities at trial

15.The list of assets and liabilities which the parties had, according to the trial Judge, agreed for the purposes of the trial was as follows:

Assets

[D] Drive  $925,000.00

[R] Drive  $350,000.00
              [B] Street  $650,000.00
              various bank accounts –

joint bank accounts
  - […]     $    3,841.08
  - […]     $    7,383.37
  - […]     $    5,095.00.
  husband’s bank accounts
  - […]  $   1,252.00
  - […]  $   3,454.00
  wife’s bank accounts not known                  

Holden motor vehicle

husband  $25,000.00

Hyundai motor vehicle

wife  $10,000.00
  TOTAL  $1,981,025.30

Liabilities
Mortgage on [B] Street        $64,050.00

ANZ Visa Card (joint)          $     338.00
  TOTAL  $64,388.00

Superannuation
[D] Investments
Family Superannuation
  Fund  $348,545.00

TOTAL VALUE OF NET ASSETS

INCLUDING SUPERANNUATION                $2,265,182.30

16.It is convenient in this context to mention that his Honour’s 70 – 30 per cent distribution of the parties’ assets was to be achieved under his orders of 7 April 2006 essentially by the wife retaining the [B] Street property (subject to the mortgage) and the husband retaining the [D] Drive and [R] Drive properties. The wife was also to receive a cash payment from the husband of $83,604. This payment was the subject of a subsequent order made by his Honour on 3 May 2006 apparently pursuant to the Slip Rule. The total value of the assets thus received by the wife was $679,554.

The challenge to the trial judge’s contribution assessment

17.His Honour provided the following reasons (in the following numbered paragraphs) for his determination that the property of the parties should be apportioned 75 per cent to 25 per cent in favour of the husband on account of the various forms of contributions referred to in s79(4) of the Act:

1.In paragraph 54 of his affidavit the HUSBAND says that for the five years he was employed by [the international company] he received a total salary package of $2,347,000.00.  I accept this was prior to tax but it still represents significant earnings and benefits.  Exhibit 7 reveals the break up of the HUSBAND’s salary package for the 2002/2003 financial reasons given in US dollars.  The conversion to Australian dollars (which was not challenged) reveals an income of $526,600.00 for the 2002 year and $556,900.00 for the 2003 year.

2.The WIFE’s contribution during this period was minimal in every sense.  She was absent from the country where the Husband was residing for about 30% over the overall period.  I accept that for a portion of this period she was travelling overseas accompanying the HUSBAND.  In effect the parties lived a life of comparable luxury.  I accept the lifestyle as described in the affidavits filed by the HUSBAND of various witnesses who witnessed the lifestyle.  The WIFE’s most arduous duties appeared to consist in hosting dinner parties.  Apart from that she would have had light housekeeping duties   for her HUSBAND and herself with the assistance of regular external help from a housekeeper in both New Guinea and Indonesia.

3.It was the HUSBAND who exercised his skills in working to a master plan to set the parties up for retirement.  The HUSBAND created the self funded superannuation fund.  He made the decisions to exercise share options.  He had made the important decision to acquire [D] Drive with no input from the WIFE.  In short I am satisfied the HUSBAND made the majority of the important investment decisions.  The parties led an affluent five star lifestyle both in New Guinea and Indonesia as well as having expensive overseas holidays travelling business class.

4.The WIFE has had the benefit of the use of [D] Drive since separation in late 2004 or early 2005.

5.I accept the WIFE contributed the proceeds of her property settlement with [her previous husband] in the amount of about $120,000.00 to reduce the mortgage liability on the various properties.  I find it unlikely that the WIFE contributed the proceeds of the E-type Jaguar motor vehicle or the additional sum of $30,000.00 she claims to have received.  The document annexed to the WIFE’s affidavit, the correspondence between the solicitors dated 1999 is not evidence of the terms of the settlement.  It is evidence of what one of the parties was offering to settle for.  It would have been a relatively easy matter for the WIFE to produce the final consent orders to establish the precise entitlements she received.

6.I accept the WIFE contributed the proceeds of sale of the property at [G] Drive.  Balanced against this I accept in the period prior to its sale the HUSBAND had been responsible for reducing the mortgage liability from $148,000.00 to $90,000.00 from his salary.

7.The HUSBAND made the greater initial contributions.  The WIFE’s termination pay from [her former employer] was said to be $10,000.00.  The HUSBAND’s termination pay from [that same employer] was said          to be $30,000.00.  The HUSBAND says his superannuation was valued at $95,000.00 in July 1997 and $147,144.00 in July 1998 immediately prior to the parties leaving for New Guinea (refer HUSBAND’s affidavit paragraphs 90 and 91).

8.The HUSBAND says when the WIFE left her employment in 1996 her superannuation was valued at $34,231.00.  She changed funds and he       contributed $1,000.00 per month for a period of 36 months to the WIFE’s fund.  In January 2004 when the WIFE turned 55 the fund was valued at $70,000.00 and was paid out.  I accept the HUSBAND’s account of how these monies were disbursed.

9.In the course of final submissions Counsel for the HUSBAND urged the Court to make six findings as follows:

i.The relationship was for the periods of time as particularised by the HUSBAND.

ii.The HUSBAND made the overwhelming financial contributions throughout the relatively short period of cohabitation from mid 1998 to late 2004.

iii.The HUSBAND was the instigator of the financial success of the parties during the period of the relationship.

iv.The WIFE made minimal financial contributions.

v.Accept the evidence of the HUSBAND where it is in conflict with the evidence of the WIFE.

vi.Section 75(2) adjustment is not clear cut in the WIFE’s favour. The HUSBAND should be entitled to live in [L] where members of his family live. He has previously attempted to seek work in that district as has the WIFE and the attempts by each of the parties was unsuccessful.

10.Counsel expanded on the reasons why findings should be made in such terms.  I accept the validity and force of the submissions made.

18.The wife’s grounds of appeal directed to his Honour’s findings in relation to the parties’ contributions, and his assessment of those contributions are as follows:

2.The trial judge’s assessment of the respective contributions of the parties is erroneous in that:

2.1.   it was based on an erroneous finding, or alternatively an erroneous assumption, that there was a significant disparity in the direct financial contributions of the parties in favour of the husband, when in fact the direct financial contributions of the parties were approximately equal;

2.2.   his Honour failed to take into account, or in the alternative, failed to sufficiently take into account, the use to which the respective contributions of the parties were put;

2.3. contrary to principle, His Honour accorded to the wife’s contribution pursuant to s79(4)(c) “token” and not “substantial” weight when compared by the trial judge, in particular, with the husband’s earnings.

3.   The learned trial judge’s assessment of the contributions falls outside the reasonable exercise of discretion and/or is plainly wrong or manifestly unjust in the circumstances of this case.

19.So far as the direct financial contributions of the parties are concerned, we accept the assertion contained in Ground 2.1 that those contributions did not significantly favour the husband, but rather (and as we will later illustrate by reference to relevant figures) were approximately equal.

20.As was demonstrated by Counsel for the appellant wife in his submissions, his Honour was mistaken when he said in paragraph 5 of his reasons for his contribution assessment, that the amount of $120,000 received from the wife’s property settlement with her former husband was used to reduce the mortgage liability on various properties.  Rather, it was used towards the purchase of the [B] Street property in August 2000.

21.Given that the total purchase price for the [B] Street property was in the region of $305,000, the wife’s contribution can be seen to have been significant, notwithstanding the husband’s contribution of $36,000 and his mortgage repayments of over $1,200 per month for the five years from purchase in August 2000 to the trial in November 2005.  (See husband’s affidavit filed 30 September 2005, paragraphs 81 – 86).

22.It may well be, as was submitted by Counsel for the husband, that this misunderstanding on the part of his Honour as to the use made of the wife’s property settlement monies matters little, and we accept that if there was no other successful challenge to his Honour’s decision, our interference with his decision would not be justified on the basis of this misunderstanding alone.

23.However, in paragraph 6 of his reasons for his contribution assessment, his Honour said that he accepted that the wife “had contributed the proceeds of sale of the property at [G] Drive”, and he went on to say that he balanced this contribution against the fact that the husband had been responsible for reducing from his salary the mortgage liability on that property prior to its sale from $148,000 to $90,000, that is, by some $58,000.

24.But in that discussion his Honour did not identify the fact that the net proceeds of sale of that property represented the relatively significant amount of $242,600.  (See paragraph 77 of the husband’s affidavit filed 30 September 2005).

25.Furthermore, his Honour appears, in our view, to have failed to take into account the fact that the husband’s contribution to this property was made from his salary, and that he had already identified in paragraph 1 of his reasons for the contribution assessment, the husband’s significant salary as a contribution.  It was thus in effect a “double-count” to then give the husband a credit for a contribution to the [G] Drive property on account of mortgage payments from his salary.

26.Similarly, when discussing the wife’s superannuation entitlement (at paragraph 7 of his reasons for the contribution assessment), his Honour again appears to have given the husband a credit for a contribution to that entitlement of $1,000 per month for a period of 36 months.  On the assumption that the husband made such payments out of his salary package, there again would be a double count.

Conclusion in relation to the contribution assessment challenge

27.On the basis of the matters just referred to, we consider that the complaint in Ground 2.1 concerning the parties’ direct financial contributions has substance, and that accordingly our interference with his Honour’s assessment of the parties’ contributions, and thus his overall award is required. 

28.Because we have concluded that it is necessary for us to interfere with his Honour’s award because of the substance which we have found in ground 2.1, it is unnecessary that we address any of the other grounds of appeal. It is however, apposite to make some comment in relation to the apparent challenge in Ground 2.3 to his Honour’s assessment (contained in paragraph 2 of his reasons for his contribution assessment) of the wife’s contribution “during the period” as being “minimal in every sense”.

29.We assume that his Honour in making these observations was referring to the period when the husband was working out of Australia and earning over half a million dollars each year.  If, in his reference to the wife’s contributions as being “minimal in every sense”, his Honour was including the wife’s capital contributions, he was clearly in error as we have earlier discussed.

30.However, to the extent that his Honour was referring to the wife’s contributions to the welfare of the family as a homemaker (there having been no parent role for the wife to fulfil), it is important to note that his Honour’s findings of fact concerning the wife’s absence from the husband for about 30 per cent of the relevant time, her hosting of dinner parties and light housekeeping duties with the regular assistance of a housekeeper, were not challenged before us by the wife.

the application to adduce further evidence

31.Similarly, it is unnecessary that we determine an application by the husband to adduce further evidence at least insofar as the further evidence was relied upon in opposition to the ground of appeal directed to the capital gains tax issue. The further evidence in question concerned the necessity following his Honour’s orders for a sale of the [R] Drive property, which was to be retained by the husband under those orders. The further evidence also concerned the consequential capital gains tax liability for the husband.

32.However, in the event that we were to re-exercise the discretion, as we understood both parties would have us do in the event that we found merit in the appeal, we also understood that that further evidence could be received effectively by consent. We also understood it to be accepted that if we took into account the husband’s capital gains tax liability on the [R] Drive property, we should also do so in relation to the wife’s [B] Street property and without necessarily determining whether his Honour had been correct in not taking that liability into account.

re-exercise of the discretion

33.Given the errors which we have identified in the trial Judge’s assessment of the parties’ contributions (and assessment which, in fairness to his Honour it must be pointed out, is not without difficulty), we now proceed to re-exercise the discretion.

(i) The adjusted pool

34.We understood both parties to accept that if we were to re-exercise the discretion, we should do so in relation to the same pool of property as was before his Honour, adjusted only to take into account the sale of the property at [R] Drive for $370,000 and each party’s liability for capital gains tax liability on their respective properties.  The adjusted pool would therefore be as follows:

Trial JudgeAdjusted

Assets

[D] Drive  $925,000.00
[R] Drive  $350,000.00             $370,000.00
[B] Street  $650,000.00
various bank accounts –

joint bank accounts

- […]  $    3,841.08
  - […]     $    7,383.37
  - […]  $    5,095.00.
  husband’s bank accounts
  - […]  $   1,252.00
  - […]     $   3,454.00
  wife’s bank accounts not known                  

Holden motor vehicle

husband  $25,000.00

Hyundai motor vehicle

wife  $10,000.00

TOTAL  $1,981,025.30               $2,001,025.30

Liabilities
Mortgage on [B] Street
  Property  $64,050.00
  ANZ Visa Card (joint)          $     338.00
  CGT Liability of wife  $60,000.00
  CGT Liability of husband       $40,000.00

TOTAL  $64,388.00               $164,388.00

Superannuation
[D] Investments
([Family Superannuation
  Fund])  $348,545.00             $348,545.00

TOTAL VALUE OF NET ASSETS
INCLUDING SUPERANNUATION                   $2,265,182.30         $2,185,182.30

(ii) The re-assessment of the parties’ contributions

1. The assessment of the parties’ contributions, particularly to the properties which they had at the recommencement of their relationship or then acquired during their resumed relationship and marriage, is as we have observed earlier, not without difficulty.

2. However we are as satisfied as we can be on the basis of his Honour’s findings (insofar as they were not challenged) and on the basis of the evidence to which we were taken by Counsel of the following matters:

   ·At the recommencement of cohabitation in June 1998, the wife had her property at [G] Drive, recently purchased for $160,000 - $180,000 and to which she and her son had contributed about $35,000 (in lump sum and mortgage repayments).  At August 1998 the mortgage stood at $148,000.  Thereafter, the husband made mortgage repayments for the wife.  When the property was sold in May 2003 for $333,500, the mortgage stood at $90,400 and had thus been reduced by $57,600 by the husband’s payments.  The net sale proceeds were $242,600. (See husband’s affidavit filed 30 September 2005, paras 70-77).

   ·Also at the recommencement of cohabitation in June 1998, the husband had his recently purchased property at [D] Drive, purchased for $305,000 on the basis of a bank loan of $260,000 and his savings of $45,000 including his termination payment of $30,000.  (See husband’s affidavit, filed 30 September 2005, paragraphs 65 to 69).

   ·Prior to recommencing cohabitation, the parties also had termination payments:  the husband of $30,000, and the wife of $10,000.  It is clear the husband’s payment went into the [D] Drive property and presumably the wife’s went into the [G] Drive property. 

   ·In May 1999 the [R] Drive was purchased for $120,000 with a borrowing of $85,000 and balance in cash from the husband’s “savings/ earnings”.  The husband claims the loan was paid out from “double mortgage payments from his salary”.  (See husband’s affidavit filed 30 September 2005, paragraph 78).

   ·In August 2000 the [B] Street property was purchased for $310,000 (with purchase costs of $16,000).  There was a deposit of $140,000 to which the wife contributed $120,000 from her property settlement and the balance was a bank loan of $170,000 on which the husband made mortgage payments of $1,213 per month.  The property was worth $650,000 at trial with a mortgage of $65,720. (See husband’s affidavit filed 30 September 2005, paragraphs 81 to 86).

   ·The husband had superannuation at the re-commencement of the relationship of $160,000 - $180,000l; it was worth $348,545 at trial.

   ·The wife had superannuation of $34,000 at the recommencement of the relationship.  Up until December 2003 the husband had contributed a further $36,000 ($1000 per month for 36 months). The fund stood at $70,000 when paid out and used for family purposes in January 2004. 

   ·In addition to these lump sums, the husband had his significant salary which he has established totalled before tax, a little over $2,300,000 in the five years July 1998 to June 2003.

3. It will be appreciated that an assessment of the parties’ financial contributions in this case is made somewhat difficult by the significant appreciation in all properties held at the commencement of, or acquired during, the relationship. The position is further complicated by the husband’s payment of the mortgages on the various properties out of his significant salary.

4. Given these considerations and also the relatively short period of the marriage, it is appropriate, in our view, to consider initial capital (or like) contributions in the following way:

   ·Wife – $35,000 in [G] Drive (including termination payment).

   ·Wife - $120,000 entitlement from property settlement.

   ·Wife – superannuation of $34,000.

   ·Husband – $45,000 in [D] Drive (including termination payment).

   ·Husband – superannuation of $147,000.

5. It will thus be seen that what can be described as “direct financial contributions” at the recommencement of the relationship were approximately equal, being $189,000 from the wife, and $192,000 from the husband.

6. From this approximately equal starting point, there must then be taken into account:

   ·    the husband’s pre-tax salary of $2,347,000 for the five years (being July 1998 to June 2003) from which mortgage payments for all properties and also for the wife’s [G] Drive property (prior to its sale) were made;

   ·    the husband’s investment decisions as found by his Honour (at paragraph 3 of his reasons for his contribution assessment) and not challenged by the wife before us;

   ·    the wife’s domestic contribution as found by his Honour (at paragraph 2 of his reasons for his contribution assessment) and not challenged by the wife before us.

   41.Overall we would assess these contributions at 60 – 40 per cent in the husband’s favour.  In a net pool of a little over $2 million, this would result in the husband having property to the value of about $1.2 million and the wife $800,000.

   (iii) The s 75(2) adjustment

   42.As to the s 75(2) matters, we consider it open to us to use as a starting point his Honour’s findings in relation to those matters. Those findings were as follows:

   [After separation] [t]he HUSBAND … moved to Melbourne to seek employment.  He is currently earning $46,000 a year gross.

   …

   The WIFE has not found employment although she says in her affidavit (121) that she has expended $50.00 a week on TAFE courses to acquire the necessary skills to enter the workforce again.  I accept the WIFE is now 57 years of age and has not worked since 1998 other than in charitable works which she says she engaged in whilst she and her HUSBAND were overseas.

   Her resumé annexed to her affidavit is in glowing terms but once again I expect there is a measure of hyperbole in that document.

   The HUSBAND had hoped to retire but it is likely he will have to continue to work.  If he does his income will be modest compared to his past earnings.

   The WIFE may obtain work in New Zealand if she elects to relocate there.  I am unable to make a firm finding on that aspect.

   43.His Honour the proceeded to make a further adjustment of 5 per cent in the wife’s favour apparently on account of the s 75(2) matters to which he had referred.

   44.In the wife’s submissions in support of her grounds of appeal directed to his Honour’s adjustment of only 5 per cent on account of the s 75(2) factors which he had identified, there is criticism that his Honour failed to take into account the wife’s unchallenged evidence of health problems arising out of a skin condition and blood pressure. In our view, the issue of the wife’s health would be subsumed, so to speak, for s 75(2) purposes, in her age (relative to that of the husband) and her lack of significant employment prospects (as found by his Honour).

   45.More significant, however, is the criticism made on behalf of the wife that his Honour did not take into account the significant capital disparity between the parties which would have resulted from his Honour’s 75 – 25 per cent distribution of property on account of their contributions.  That disparity will not, of course, be as great now that we have determined a 60:40 distribution on account of contributions.

   46.Given that capital disparity which should be considered against the background that the greater part of the parties’ capital was acquired during the marriage, and given also the husband’s greater income prospects having regard to his age, and the fact that he has a superannuation entitlement which the wife does not, we consider that there should be a 5 per cent adjustment in favour of the wife.  This would result in the wife receiving or retaining assets to the value of $983,332 (45%) which we consider to be a just and equitable outcome in the circumstances of the case.

   47.In the orders sought in her notice of appeal the wife sought to receive in addition to the [B] Street property (valued at $650,000), the [R] Drive property (now valued at $370,000) and also the sum of $154,000 (as well as her car valued at $10,000). Given that the [B] Street property has been sold, our order can only be for a cash payment, which we calculate as follows (but from which would have to be deducted any amount already paid pursuant to the trial Judge’s orders):

[B] Street  $650,000

Car$  10,000

Sub Total$660,000

Less Mortgage  $  64,050

Less CGT$  60,050

Net Sub Total  $535,950

Cash payment required

from Husband  $447,382

TOTAL  $983,322  

costs of the appeal

48.In the event that the appeal succeeded, which it has, both parties sought certificates under the Federal Proceedings Costs Act 1981.  We consider it appropriate to grant such certificates.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate:

Date:  31 July 2007