E and F

[2008] FCWA 70

[2008] FCWA 70

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	E and F [2008] FCWA 70
CORAM	:	MARTIN J
HEARD	:	8 & 9 JANUARY 2008
DELIVERED	:	20 JUNE 2008
FILE NO/S	:	PT 3928 of 2006
BETWEEN	:	E Applicant
AND
F
Respondent
Catchwords:

Settlement of property - contributions - inherited property - s 205D(3) factors

Legislation:

Family Court Act 1997 - s 205ZG and s 205D(3)

Interpretation Act 1984 (WA) - s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Childs
Respondent	:	Ms Brownlie

[2008] FCWA 70

Solicitors:

Applicant	:	Legal Aid WA
Respondent	:	Hammond Worthington

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

Norbis and Norbis (1986) FLC 91-712

1 The issues to be decided were the parties’ respective applications for settlement

of property. The applicant father’s application in this regard was commenced by an amended response filed 28 February 2007, to which the respondent filed a reply on 2 April 2007.

2 At trial, the respondent sought that the applicant pay to her the sum of $140,000, and that the parties otherwise retain the assets in their respective possession, the applicant retaining his home at [an address in the outer suburbs]. The applicant sought an order that he pay the respondent the sum of $25,000.

3 By the conclusion of the trial, there was no dispute as to the extent of the asset pool, which it was agreed had a net value of $348,030.

4 The issues to be decided were:

1. The respective contributions of the parties, having regard to the fact that a substantial portion of the asset pool was acquired through the applicant’s initial contribution and an inheritance the applicant received from his father’s estate, and the weight to be given to the parties’ respective contributions, particularly as parents. The respondent claimed to be entitled to 20% of the asset pool based on contributions, and the applicant’s position was that 5% was the appropriate figure.

2. The appropriate adjustment for s 205D(3) factors, having regard to the parties’ respective income earning capacities, their obligations to care for the children, and the other relevant factors. The respondent proposed an adjustment in her favour of 20%, and the applicant, 10%. Therefore, the applicant claimed to be entitled to 40% of the asset pool, and the respondent accepted 15% was the appropriate figure.

3. How the settlement was to be effected, having regard to the fact that the applicant is very anxious to retain his present home, but has had modest earnings, and therefore, has a limited capacity to borrow funds to pay the respondent her entitlement.

5 Although the applicant’s Papers for the Judge raised the jurisdictional issue as to

whether s 205Z(1) of the Family Court Act 1997 applied, this issue was not pursued at trial. I have no doubt that the Court has jurisdiction to determine an application for property settlement between the parties. While their cohabitation was not continuous, it extended for at least two years in total. The respondent claimed it was a total of 27.5 months. Most significantly, I am satisfied that there are two children of the de facto relationship and failure to make an order would result in serious injustice to the respondent, whom the applicant had agreed was entitled to at least $25,000.

6 The parties have also been involved in proceedings in relation to their two children, girls aged four and three years, these having commenced in July 2006. Following the preparation of a single expert report, pursuant to orders made by me on 3 October 2007, and with the assistance of counsel for the parties, the parties were able to successfully negotiate a resolution of the dispute in relation to parenting orders,

[2008] FCWA 70

and at the commencement of trial, on 8 January 2008, I made orders, by consent,

providing, in summary, as follows:

• the parties have equal shared parental responsibility for the children;

• the children live with the respondent in [the South-west of the state];

• the children spend time with the applicant, until early 2009, from Sunday afternoon until the following Thursday afternoon in each alternate week, and for a week of the mid year school holidays this year, and two weeks in the summer school holidays in 2008/2009;

• thereafter, the children spend time with the applicant during school terms on alternate weekends from Friday night until Sunday night, extending to Monday night in the event of a long weekend, for half of term school holidays and alternate weeks during the summer school holidays including Christmas Day in alternate years;

• the parties share the responsibility for transporting the children.

7 I apologise to the parties for the delay in delivering judgment.

Background

8 The applicant (“father”) is 47 years old and a self-employed [tradesman] and

musician. The respondent (“[mother]”) is 46 years old and a part-time [teacher], also engaged in home duties. The parties met in 1997, and commenced a relationship in the following year. They first commenced cohabitation on 1 August 1999. They finally separated on 4 May 2006, when the respondent left the home in which the parties were then living at [the address in the outer suburbs]. Overall, they lived in the same home for approximately two years.

9 The two children of the parties are [A], born [in] 2004, and [J], born [in] 2005.

10 In January 2007, the respondent moved to [the South-west of the state] with the

two children.

11 [The mother] had been previously married and involved in another relationship

and had four children, [L], aged 27 years, [J], aged 24 years, [M], aged 20 years, and
[E]l, aged 13 years.

12 [The father] has a child of a relationship in which he was involved from about

1987 to 1997/8, [H], aged 16 years. [H] lives with the applicant, and is working as a
[tradesman].

13 At the commencement of the relationship, the parties lived in a home owned by

the applicant, at [an address in the outer suburbs]. He had obtained the home that year through a property settlement with his former partner. The parties lived there together, with the respondent’s three children, [J], [M] and [E], and with [H] visiting frequently, until 15 October 1999.

14 In September 1999, the applicant was attacked by the respondent’s former

partner, [Mr R], and suffered extensive injuries. [Mr R] was subsequently imprisoned

[2008] FCWA 70

as a result of this offence. The respondent moved out of the home with her children, largely because of what had happened, so [Mr R] could not readily find her, and moved into nearby rental accommodation. The parties still maintained a relationship to some degree, and the applicant contributed approximately $1,000 towards the respondent’s bond and rent when she moved out.

15 On 3 December 1999, orders were made in this Court in relation to [H], and he

lived with his father for a time. He later stayed with his father on weekends and
during school holidays. Since about May 2004, he has lived with [the father].

16 On 26 September 1999, the respondent’s father died, and by October 2000, he

had received an inheritance of $172,786, which included the value of a [motor vehicle and trailer] from his late father’s estate, worth about $22,400, and the balance in cash.

17 The respondent, together with her children, [M] and [E], moved back into the applicant’s home at [his address] between 12 May 2000 and 28 February 2001.

18 Upon receiving his inheritance, the applicant discharged the mortgage of

$80,000 registered against [his] property, and over the next five years, spent approximately $30,000 renovating the property, including adding a room, although the respondent says without council approval, and it was inadequately finished.

19 Upon the separation of the parties, in February 2001, the applicant again

contributed approximately $1,000 towards the respondent’s bond and rent and lent her
a vehicle for approximately four months.

20 Between August 2001 and February 2002, the applicant was involved in another

relationship for six months. The parties then resumed their relationship, but continued to live in separate homes until 29 April 2003, when the respondent requested that the applicant collect her from where she was then living in [the South-west]. The respondent then moved into the applicant’s home at [the outer suburban address] again for a period of nine months, with the children, [M] and [E].

21 In July 2003, the respondent became pregnant with the child [A].

22 Although the respondent told Centrelink the parties separated in October 2003, the parties again separated on 19 January 2004, and the respondent contributed approximately $3,000 towards the respondent moving into a nearby home and lent her a vehicle.

23 [A] was born in April 2004, and shortly afterwards, the parties resumed their

relationship, but continued to live in separate homes. One of the issues was that the respondent felt [his] property was too small for the family. The parties, to some extent, shared the care of the children and both received Centrelink pensions. The respondent admits the applicant was more help to her from November 2004. [J] was born in April 2005, so there is only one year’s age difference between the children.

24 In September 2005, the applicant sold [his] property and purchased his present

home at [an address in a suburb nearby]. The property was registered in the joint name of the parties. The purchase price was $302,500 which was funded by the

[2008] FCWA 70

applicant contributing the net proceeds of the sale of [his] property, and contributing another $20,000 to the other costs associated with the purchase. A mortgage of about $131,000 was obtained. The parties recommenced cohabitation at the [new] property on 28 October 2005, and separated, to some extent, but continued to live under the one roof, on 2 February 2006. The respondent then moved out of the parties’ shared bedroom. The respondent finally left the home on 4 May 2006, and moved to rental accommodation [nearby]. The applicant contributed a further $2,000 to [the mother] for the costs of moving, and for the bond and rent on the new accommodation. When the respondent left the home, she did not inform the applicant of where she was going with the children, although she left a note providing contact methods. She removed a number of items from the home, she says the items she had owned prior to the relationship – [furniture, musical instruments and a motor vehicle]. The respondent said she left some household items she had purchased at the home.

25 [The father] commenced proceedings in this court seeking a shared care

arrangement, and interim orders were soon made for him to spend some time with the
child.

26 In August 2006, the respondent pursued both additional child support and complained to the local council about the applicant working from home.

27 In January 2007, the respondent informed the applicant by text message that she

proposed to move to [the South-west of the state]. The applicant filed an urgent application, and on 29 January 2007, it was ordered that, until further order, the children reside with him from Sunday afternoon until the following Wednesday afternoon in each alternate week, and with effect from 1 March 2007, until Thursday afternoon in each alternate week. The children were otherwise to live with the respondent.

28 At a conciliation conference on 19 June 2007, the proceedings were included in

the Judge Track, and the parties appeared before me on 16 August and 14 September 2007, at which time there was considerable discussion about the progress of the proceedings in relation to the children’s issues, and also in relation to valuations.

29 At the conclusion of the trial, I was informed that the parties had reached

agreement in relation to the division of chattels and subsequently a proposed consent order, signed by counsel for the parties, was filed and orders made on 14 January 2008.

Assets and liabilities of the parties

30 Pursuant to s 205ZG(1) of the Family Court Act 1997, in proceedings with

respect to the property of de facto partners, or either of them, the Court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.

[2008] FCWA 70

31 Pursuant to s 205ZG(3), the Court must not make an order under the section

unless satisfied that, in all the circumstances, it is just and equitable to make the order.

32 It has been well established in cases determined under the equivalent s 79 of the

Family Law Act 1975, that the appropriate approach to be taken in an application for property settlement is:-

- The identification of the property of the parties.

- The evaluation of the “contributions” of the parties within s 79(4)(a)
to (c) [s 205ZG(4)(a) to (c)].

- The evaluation of the matters referred to in s 75(2) (picked up by the terms of s 79(4)(e) [s 205ZD(3) picked up by the terms of s 205ZG(4)(e)].

- Consideration whether the order proposed is just and equitable (“the
fourth step”).

33 Although there had been a minor issue between the parties as to whether or not

liabilities owing to the applicant’s uncle and his mother totalling $13,170 were to be taken into account in assessing the amount of the asset pool, this issue was not in dispute by the end of the trial, it having been conceded by the respondent.

34 To the parties’ credit, although some of the issues in relation to the valuation of

assets were problematic, particularly with respect to the applicant’s unusual vehicles,
the parties were able to agree values once a single expert was appointed.

35 I was informed that a [motorbike] valued at some $2,500 had been stolen and therefore should not form part of the pool.

36 As to legal fees, the position was, to trial, both parties had incurred legal fees of

about $20,000, but had grants of Legal Aid. Neither party had paid any costs of significance from their own resources. It may well be that the parties will have to pay some costs, particularly if the home is sold.

37 The position was therefore as follows:

Applicant Respondent

[The home] 210,000 210,000

[His motor vehicle]	3,000
[Her motor vehicle]	2,200
[Boat]	8,750
[Mooring]	3,750
Trailer for boat	500
Trailer for cars	300
Trailer Box	300
Vintage vehicles –
500

[2008] FCWA 70

1,000 5,000

500
12,000

12,000

Furniture and contents	3,000	3,000
Tools in workshop	9,925
Music equipment	7,675
Total:	278,200	215,200
Liabilities

Debt to [uncle]	12,000
Debt to applicant’s mother	1,170
Rams mortgage	130,000
AGC Credit Card [motor vehicle]	2,200

143,170 2,200

Net:  135,030 213,000

38 The total assets available for division are therefore $348,030.

Contributions – s 205ZG(4)(a), (b) and (c)

39 In considering what order (if any) should be made under s 205ZG(1), the court shall take into account:

(a)	the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;
(b)	the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;
(c)	the contribution made by the de facto partners to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent;

[2008] FCWA 70

40 It was not in dispute that the applicant made the overwhelmingly greater financial contribution to the acquisition and conservation of the parties’ assets.

41 At the commencement of the first cohabitation, the applicant owned the property at [the address in the outer suburbs], subject to a mortgage of about $80,000, workshop machinery, a number of motor vehicles, some household furniture and effects, and musical instruments and sound equipment. There was no evidence as to the value of [his] property at the time, but it was sold in September 2005, for $179,000, and it must have been worth considerably less in 1999. The respondent owned a small amount of furniture and household effects.

42 During the relationship, the respondent accepts the applicant worked very hard

and for very long hours. He was engaged in his [business], which he ran from home, and as a musician, [playing in a band], which played gigs regularly on weekends. He also gives some music lessons.

43 There was a significant issue at trial as to the earning capacity of the applicant,

but this related more to s 205D(3) factors. While the applicant’s taxable income was very modest, he made the predominant day to day financial contributions and paid the mortgage from the income he received from the [business] and as a musician. In fact, both parties were in receipt of Centrelink payments for extensive periods. The respondent received some child support payments for her other children. The respondent paid for some food and household expenses from her income.

44 The applicant’s taxable income was:

1999 $23,922 2000 $10,624 2001 $6,826

2002 $2,510
2003 $649
2004 $615
2005 $6,282

2006 $10,471 of which $4,419 was Centrelink payments

2007 $20,007 of which $12,588 was Centrelink payments

45 The applicant made a very significant financial contribution shortly after the

parties’ relationship had commenced through the inheritance received from his father, which totalled an amount of approximately $173,000, including the value of a [motor vehicle and trailer], which was received by October 2000.

46 The applicant contributed $30,000 towards renovating the home, and purchased

[a boat] and a mooring, the [vintage vehicle], and a lathe and mill. All the deposit for the purchase of the property at [the new address], came from the proceeds of sale of [his previous] property.

[2008] FCWA 70

47 The applicant’s position is that the only substantial purchase the parties made while cohabiting was a boat trailer currently valued at $500.

48 As to non financial contributions, the applicant’s evidence was that he made

virtually all the non financial contributions by building an addition to [his original property] and doing work towards this. His evidence was that he had purchased a garage door for [the new home], made two gates, put down a concrete pad for the garden shed and, with the help of a friend, put the electricity on, as well as doing plumbing work.

49 It was accepted that the respondent had made an indirect contribution to the

[new] property by establishing and maintaining a garden, and that she assisted the applicant, to some extent, with painting. The respondent’s position was that it would take some time to get the home up to standard on the occasions when she resumed cohabitation with the applicant because it was in a messy state, and I accept this was likely to be the case.

50 As to contributions to the welfare of the family and the care of the children, the

applicant’s son, [H], lived with the parties initially when they commenced cohabitation and later spent most weekends and school holidays with them. From mid 2004, he has lived with the applicant. The respondent’s position was that she was primarily responsible for [H]’s day to day care, as the applicant was spending long hours working. I accept she catered for many of [H]’s day to day needs over the limited time both he and the respondent were in the same household. The respondent was responsible for the care of her older children from her previous relationship and accepts that the applicant also contributed by providing a roof over their heads for some of the time, and he also involved them in some enjoyable activities, for example, with motorbikes.

51 The respondent claimed that she was the primary caregiver of [A] and [J], as the

applicant was too busy with his work to help much, but the applicant’s position was that the parties shared responsibility for the care of the children when they were very young and he was not then working much. The parties were then living in separate homes, so the respondent must have cared for the children for much more of the time than the applicant. The parties only lived together for four months prior to separation after the birth of [A]. However, the respondent accepts the applicant became more involved from about November 2004, helping with [A] in the mornings while she got [M] and [E] off to school. Since separation, the respondent has been the primary carer, but the applicant now has substantial shared care, which will reduce when the children commence schooling.

52 While the parties shared household duties to some extent, the applicant accepted,

under cross-examination, that the respondent had carried out the lion’s share of the household duties. He really only helped with laundry. Although the parties only lived in the same household for a fairly short time, the respondent did cook some meals for the applicant when the parties lived in separate households. There were additional duties, for example, making tea and coffee and extra cleaning because the applicant was working from home with his [business] and its employees and the music lessons, although the applicant claimed that [mother]’s contribution in this regard was overstated. I do accept that the presence of the vehicles, the workshop and the music

[2008] FCWA 70

equipment would, more likely than not, have made the respondent’s contributions as

homemaker and parent more difficult.

Conclusion - contributions

53 The applicant’s position was that, as in the case of Norbis and Norbis (1986) FLC 91-712 at p 75,168, an asset by asset approach to contributions should be taken, rather than an overall assessment, but I do not accept this is appropriate in a situation where, clearly, the respondent’s contribution was mainly as homemaker and parent, and s 205ZD(3) factors are of considerable significance.

54 The parties finally separated when the children were very young and I accept

that to that time, the respondent had made a greater contribution as parent to the children of the parties, although the applicant made some contribution. Since then, she has been the primary caregiver and this is likely to continue. While the respondent contributed her modest income from an income-tested pension towards the support of the family, much of the family comprised her children of previous relationships. The applicant made substantial contribution to them. The applicant also had to support his son to a considerable extent.

55 The applicant has made a greater indirect contribution than the respondent, although the respondent made some contribution.

56 However, it is the applicant’s overwhelmingly greater financial contribution,

both initially, and through his inheritance, which has been, really, entirely responsible for the creation and maintenance of the present asset pool. The parties would have virtually nothing without it. Although the value of the home has increased with market forces, this is of minimal relevance when the respondent’s contribution to it is minimal. The respondent only lived in the jointly owned home for a few months. I have concluded the respondent should be entitled to 12½% on the basis of contributions overall, and the applicant, 87½%.

Section 205ZD(3) factors

57 Pursuant to s 205ZG(4)(e) of the Family Court Act 1997, I must take into

account the matters referred to in s 205ZD(3), so far as they are relevant, and adjust any distribution based on contribution to ensure that the division of property between the parties is just and equitable.

58 The applicant is 47 years old, and suffers from asthma. He has some problems

with his back and knees as a result of motorbike accidents and as a result of the assault
by the respondent’s previous partner.

59 The respondent is 46 years old and suffers from an anxiety disorder and panic attacks for which she has received some treatment.

60 There was a significant issue at trial as to the applicant’s earning capacity, in

particular. The respondent’s position was that the applicant was substantially

[2008] FCWA 70

understating his income to taxation authorities, and that his earning capacity was much
greater than his taxable income would indicate.

61 The applicant’s position was that monies received by him were properly

accounted for, particularly since the commencement of the proceedings in this Court and the involvement of the Child Support Agency. He accepts he minimises the use of banks, keeping cash in the home. He maintained that he had had the same approach to his life, at least since 1991, when he had the major motorbike accident, working largely on major projects from home. I accept this is likely to be the case. As a result of complaints made by the respondent to the [local government office] about working from the property, his evidence was that he now generally works at customers’ homes. While he works hard, some of his work does not produce an income, such as working on his son’s motorbike, and he does some “contra” work for others.

62 The applicant does undertake some gigs with his band, but these have reduced

considerably, largely because the applicant is unable to take on jobs at times when he has the children. Sometimes he is able to earn significant sums, for example, he earned $1,200 over New Years Eve, but he and the band had to incur the expense of [travelling a long distance] to take on the job. The applicant’s evidence is that his ability to earn money from the band has reduced because of his commitment to the care of the children and I accept that, to some extent, this is the case. The applicant’s evidence was he hoped to earn $20,000 per annum in the future, and I accept he should be able to earn at least this, even if some of it is in contras.

63 The applicant has a commitment to pay mortgage payments of about $240 per week which he has managed to maintain.

64 At the time of trial, the respondent was earning approximately $105 per week,

during school terms, from teaching music. She has recently qualified as a [teacher of music for] pre-school children. She hoped to restart studies for a [degree]. The applicant was paying child support of $50 per week for the two children which is about the amount of the child support assessment.

65 As [H] is in employment, and paying board of about $100 per week, the applicant really has no commitment towards his support.

66 The respondent has a commitment to support the children, [A] and [J]. She also is responsible for supporting [E], as no child support is paid by his father.

67 The respondent does not have any superannuation, and the applicant has a

minimal amount of superannuation of about $3,012, which neither party proposed
should be brought to account.

68 Neither party is cohabiting with any other person. The respondent wishes to

continue in her role as a parent for [A] and [J] and to be available to care for them
when they are not at school.

69 It was accepted that the de facto partnership between the parties extended for

only a maximum of 27.5 months, and perhaps slightly less over a period of approximately six years, to the extent that was the time that the parties were living

[2008] FCWA 70

together in the same household. However, there were some occasions where some elements of a de facto relationship existed, for example, the parties continued their sexual relationship for much of the time and spent quite a bit of time together. It was for about a year that the parties did not see each other at all.

70 It was not suggested that the de facto relationship had any effect on the earning

capacity of either parent, apart from the fact that both parties now have two additional
young children to care for.

Conclusion – s 205D(3) factors

71 While the applicant presently has substantial shared care at present, the parties

have agreed that, when the children commence school, they will primarily reside with their mother so she will bear more of the commitment for their support than their father. Both parties will have substantial travel costs.

72 Both parties have modest incomes at present, and I accept the respondent

presently has less earning capacity than the applicant. Once the children are at school and, hopefully, she completes her studies, the parties should have a similar earning capacity.

73 It is obvious that the applicant is very unlikely to ever work for wages, and will

remain self employed, not maximising his possible earning capacity, but still keeping very busy. This is his choice, but the children still require maintenance and support. It is most unlikely that a realistic level of child support will ever be paid.

74 In those circumstances, I accept that a substantial adjustment in the respondent’s

favour is appropriate, of 12½%. I have therefore determined it is just and equitable
that the respondent receive 25% of the parties’ assets, and the applicant, 75%.

Just and equitable orders – the fourth step

75 The applicant sought time to pay the respondent any sum that I would require

him to pay by way of settlement of property. He is very anxious to retain his home. However, he has had several months since trial to start reorganising his affairs. I am prepared to give him some additional time, but there is no good reason for him to retain this property as he has not lived there for long, and he is now not able to undertake mechanical work there for most of the time.

76 In the event the property is divided on the basis the applicant receive 75% of the assets, and the respondent 25%, the respondent would be entitled to receive $87,008, and the applicant, $261,022.

77 The respondent was anxious to ensure that she did not retain any responsibility

for the joint mortgage with respect to the home. She plans to purchase a home in shares with her sister who has available funds. I accept this is appropriate. It seems likely the home will have to be sold in any event and the mortgage discharged.

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78 It is clearly appropriate for the parties to equally share the costs incurred in obtaining valuations, and I have previously ordered this occur.

79 The effect of the orders will therefore be:

Applicant Respondent

[The joint home]	420,000
[His motor vehicle]	3,000
[Her motor vehicle]	2,200
[Boat]	8,750
[Mooring]	3,750
Trailer for boat	500
Trailer for cars	300
Trailer box	300
Vintage vehicles –

500
1,000
5,000
500
12,000

12,000

Furniture and contents	3,000	3,000
Tools in workshop	9,925
Music equipment	7,675

Total:	488,200
Liabilities
Debt to [Uncle]	12,000
Debt to applicant’s mother	1,170
Rams mortgage	130,000
AGC Credit Card [motor vehicle]	2,200

143,170 2,200

Net:	345,030	3,000
To be paid	-84,008	+84,008

$261,022 $87,008

Proposed orders

1. Within 56 days:

(i) The applicant, at his expense, do such things as are necessary to discharge mortgage xxxx to RAMS Mortgage Corporation Ltd currently secured over the real property situated at [the address in the outer suburbs] being more particularly described as Lot xx on Plan xxxxx and being the whole of the land comprised in Certificate of Title Volume xxxx Folio xxx;

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(ii) The applicant pay the respondent the sum of $84,008.

2 Contemporaneously with payment to the respondent of the sum of $84,008, the respondent transfer to the applicant whatsoever interest she may have in [the address in the outer suburbs] applicant indemnifying and keeping the respondent indemnified against any liability arising from all encumbrances and all rates, taxes and outgoings in relation to [the property in the outer suburbs].

3. In the event the applicant fails to pay the sum by the due date, the parties sell the property at [the address in the outer suburbs] and the net proceeds of sale be divided between the parties so as to effect an overall division as to 75% to the applicant and 25% to the respondent.

4. If he has not already done so, within 7 days of the date of the orders the applicant reimburse the respondent for the sum of $607.50, being half of the cost of the valuations prepared by Scott Grundmann, Gregson's and John McLean.

5. Unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all property and chattels in the possession of such party as at the date of these orders.

6. There be liberty to apply in relation to implementation of these orders.

7. The applications otherwise be dismissed.

I certify that the preceding [79] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate