ELDER & ELDER - [2010] FamCA 50

FAMILY COURT OF AUSTRALIA

ELDER & ELDER

[2010] FamCA 50

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – business valuation – Contributions – initial contributions, compensation settlement – Adjustments – Just and equitable

Family Law Act 1975 (Cth) ss 75 & 79

InGriffiths v Kerkemeyer (1977) 139 CLR 161
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Phillips and Phillips [2002] FamCA 350; (2002) 29 Fam LR 128; (2002) FLC 93-104
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Robb (1994)18 Fam LR 489

APPLICANT:

Ms Elder

RESPONDENT:

Mr Elder

FILE NUMBER:

SYC

4828

2008

DATE DELIVERED:

29 January 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

12 & 13 November 2009

REPRESENTATION:

COUNSEL FOR THE APPLICANT WIFE:	Mr P Campton
SOLICITOR FOR THE APPLICANT:	Searle & Associates Lawyers

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr G Gould

SOLICITOR FOR THE RESPONDENT:

York Family Law

Orders

That within 30 days from the date of the making of these Orders, the husband do all acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property situated at and known as C property in the State of New South Wales being the whole of the land in Folio Identifier … free of encumbrance ("the C property").
That simultaneously with the husband's compliance with Order 1 hereof, the husband pay to the wife or as she may direct the sum of $380,600 by way of property settlement.
That simultaneously with the husband's compliance with Orders 1 & 2 hereof, the wife do all acts and things and sign all necessary documents to transfer to the husband all her right title and interest in:
3.1The property known as and situated at E in the State of New South Wales being the whole of the land in Folio Identifier … ("the E property"); and
3.2The property situated at and known as M being the whole of the land in Folio Identifier … subject to the encumbrance thereon ("the M property");
That simultaneously with the wife's compliance with the above Order 3 hereof, the husband do all acts and things and sign all necessary documents to refinance the mortgage and release the wife and otherwise indemnify and keep her indemnified in relation to the M property mortgage.

Sale of property in event of Husband's Default

That in the event that the husband omits, neglects or fails to fully comply with Order 2 or 4 hereof, then, forthwith the parties do all acts and things to list the M property for sale for the best price reasonably obtainable in the following manner:-
5.1list the M property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
5.2the sale price at which the M property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;
5.3the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the M property is first listed pursuant to paragraph (a) hereof and thereafter at three (3) calendar monthly intervals until the M property is sold, nominate a sale price other than the originally nominated sale price;
5.4the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
5.4.1making the key available to the agent;
5.4.2allowing inspection of the M property at all reasonable times requested by the agent;
5.4.3doing or saying nothing to hinder or prevent a sale being effected;
5.4.4ensuring the M property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
5.4.5signing all documents requested by the agents in relating to the listing for sale of the M property except a contract or agreement for sale which has not been authorised by the parties solicitors;
5.5the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to Order 5.4.2 and 5.4.3 hereof;
5.6the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within fourteen (14) days of the date of this order coming into operation shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
5.7neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the M property or to any commission;
5.8the party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the M property;
5.9if the agent shall certify in writing to the parties’ solicitors it is reasonably necessary for the work specified in such notice to be carried out to the M property so as to assist in effecting a sale and provided the cost of any such work is less than $5,000 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale.
That in the event the M property is not sold by private treaty within three months from the date of Order 5 becoming operative, then:
6.1the parties shall list the M property for sale by public auction with the agent appointed pursuant to Order 5.1 hereof;
6.2the reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the M property is first listed for sale in accordance with Order 6.1 hereof or in the absence of agreement a price determined by the valuer appointed pursuant to Order 5.2 and 5.3 hereof;
6.3in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the M property at a price which is not more than 5% below the reserve price;
6.4if the M property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the M property for sale by public auction again, on a date nominated by the said agent and at such auction the relevant provisions in Orders 5 and 6 hereof shall apply mutatis mutandis.
That in the event that Order 5 and/or 6 come into operation, then the proceeds of sale of the M property shall be paid in the following manner and priority:
7.1all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties).
7.2the amounts required to discharge the M property Mortgage;
7.3the amounts required to pay all municipal and water rates outstanding with respect to the M property;
7.4the amount required to repay to the party carrying out work for the M property for the cost of such work carried out in accordance with Order 5.9 hereof;
7.5to the wife, so much of the sum of $380,600 as remains unpaid to the wife pursuant to Order 2, together with interest on that unpaid sum, calculated from the expiration of 30 days after the date of these orders at the rate prescribed under the Family Law Rules 2004;
7.6an amount to be calculated by the Parties accountant as to the CGT that the wife will be required to pay on sale of the M property;
7.7the balance then remaining to the Husband.
That in the event that Orders 5 to 7 come into operation and there is a shortfall in compliance with Order 7.5 hereof after payment of items referred to in Order 7.1 to 7.4 inclusive then the parties shall do all acts and things and list for sale and sell the E property and to this extent Orders 5 to 7 shall apply mutatis mutandis in respect of that sale.

Transfer of Motor Vehicle

Within 30 days from the date of the making of these Orders the husband do all such acts and things and execute all documents necessary to transfer to the wife all his right, title and interest in the Mitsubishi Challenger motor vehicle registration number ….

Possession denotes ownership

That the husband be declared the sole and legal beneficial owner of:
10.1The husband's interest in the Company, Elder Holdings Pty Ltd;
10.2The husband's interest in Elder Family Trust;
10.3The husband's savings;
10.4The MISA secured over the B property ( a/c no: …)
10.5The husband's Hilux motor vehicle; and
10.6all items of personal and real property in the Husband's possession or of which the husband is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
The wife be declared the sole and legal beneficial owner of:
11.1Her Mitsubishis Challenger motor vehicle;
11.2Her savings;
11.3Her jewellery; and
11.4all items of personal and real property in the wife's possession or of which the wife is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

Superannuation

That each of the husband and the wife retain, to the exclusion of the other, their respective superannuation interests.

Default

That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these Orders a Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A(1) of the Family Law Act to execute such documents on behalf of such party.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4828 of 2008

MS ELDER

Applicant

And

MR ELDER

Respondent

REASONS FOR JUDGMENT

After living together for more than 12 years the parties cannot agree on a settlement of their property.

Applications

The wife seeks orders in terms of her Amended Initiating Application filed 6 November 2009, save that she seeks a payment of $963,000[1] in paragraph 2. Thus the wife seeks:
[1] In the course of final submissions learned counsel for the wife announced a further amendment to the much amended application of the wife whereby she now seeks a payment of $963,000 and not $802,000 in paragraph 2.
1.That within 30 days from the date of the making of these Orders, the husband do all acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property situated at and known as [C] in the State of New South Wales being the whole of the land in Folio […] free of encumbrance ("the [C] property").
2.That simultaneously with the husband's compliance of Order 1 hereof, the husband do all acts and things and sign all necessary documents to enable the wife to receive the totality of the MISA Account secured against the [C] property being an account with a credit balance of $354,000.
2.That simultaneously with the ~~wife's~~ husband's compliance with Order 1 hereof, the husband pay to the wife or as she may direct the sum of ~~$350,000~~ ~~$802,000~~ $963,000 by way of property settlement.
3.That simultaneously with the husband's compliance with Orders 1 – 3 2 hereof, the wife do all acts and things and sign all necessary documents to transfer to the husband all her right title and interest in:
3.1The property known as and situated at [E] in the State of New South Wales being the whole of the land in Folio Identifier […] ("the [E] property"); and
3.2The property situated at and known as [M] being the whole of the land in Folio Identifier […] subject to the encumbrance thereon ("the [M] property");
~~4.That simultaneously the wife's compliance with Order 4 hereof, the wife do all acts and things~~ ~~and sign all necessary documents to enable the husband to receive the totality of the MISA Account secured over the [M] property being an account in the sum of approximately $156,000.~~
4.That simultaneously with the wife's compliance with the above Orders ~~4 and 5~~ 3 hereof, the husband do all acts and things and sign all necessary documents to refinance the mortgage and release the wife and otherwise indemnify and keep her indemnified in relation to the [M] property mortgage.
Sale of property in event of Husband's Default
5.That in the event that the husband omits, neglects or fails to comply with Order ~~3 or 6~~ 2 or 4 hereof, then, forthwith the parties do all acts and things and list for sale for the best price reasonably obtainable in the following manner:-
5.1list the [M] property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
5.2the sale price at which the [M] property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;
5.3the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the [M] property is first listed pursuant to paragraph (a) hereof and thereafter at three (3) calendar monthly intervals until the [M] property is sold, nominate a sale price other than the originally nominated sale price;
5.4the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
5.4.1making the key available to the agent;
5.4.2allowing inspection of the [M] property at all reasonable times requested by the agent;
5.4.3doing or saying nothing to hinder or prevent a sale being effected;
5.4.4ensuring the [M] property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
5.4.5signing all documents requested by the agents in relating to the listing for sale of the [M] property except a contract or agreement for sale which has not been authorised by the parties solicitors;
5.5the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to Order ~~7.4.2 and 7.4.3~~ 5.4.2 and 5.4.3 hereof;
5.6the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within fourteen (14) days of the date of this order coming into operation shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
5.7neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the [M] property or to any commission;
5.8the party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the [M] property;
5.9if the agent shall certify in writing to the parties’ solicitors it is reasonably necessary for the work specified in such notice to be carried out to the [M] property so as to assist in effecting a sale and provided the cost of any such work is less than $5,000 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale.
6.That in the event the [M] property is not sold by private treaty within three months from the date of Order 7 5 becoming operative, then:
6.1the parties shall list the [M] property for sale by public auction with the agent appointed pursuant to Order ~~7.1~~ 5.1 hereof;
6.2the reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the [M] property is first listed for sale in accordance with Order ~~8.1~~ 6.1 hereof or in the absence of agreement a price determined by the valuer appointed pursuant to Order ~~7.2 and 7.3~~ 5.2 and 5.3 hereof;
6.3in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the [M] property at a price which is not more than 5% below the reserve price;
6.4if the [M] property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the [M] property for sale by public auction again, on a date nominated by the said agent and at such auction the relevant provisions in Orders ~~7 and 8~~ 5 and 6 hereof shall apply mutatis mutandis.
7.That in the event that Order ~~7 and/or 8~~ 5 and/or 6 come into operation, then the proceeds of sale of the [M] property shall be paid in the following manner and priority:
7.1all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties).
7.2the amounts required to discharge the [M property] Mortgage; ~~after deduction of the MISA account of $156,000~~;
7.3the amounts required to pay all municipal and water rates outstanding with respect to the [M] property;
7.4the amount required to repay to the party carrying out work for the [M] property for the cost of such work carried out in accordance with Order ~~7.9~~ 5.9 hereof;
7.5the sum of ~~$350,000~~ $802,000 together with interest at the rate prescribed under the Family Law Rules 2004;
7.6an amount to be calculated by the Parties accountant as to the CGT that the wife will be required to pay on sale of the [M] property;
7.7balance then remaining to the Husband.
8.That in the event that Orders ~~7-9~~ 5 to 7 come into operation and there is a shortfall in compliance with Order ~~9.5~~ 7.5 hereof after payment of items referred to in Order ~~9.1 to 9.4~~ 7.1 to 7.4 inclusive then the parties shall do all acts and things and list for sale and sell the [E] property and to this extent Orders ~~7-9~~ 5 to 7 shall apply mutatis mutandis.
Transfer of Motor Vehicle
9.Within 28 days from the date of the making of these Orders the husband do all such acts and things and execute all documents necessary to transfer to the wife all his right, title and interest in the Mitsubishi Challenger motor vehicle registration number […].
Possession denotes ownership
10.That the husband be declared the sole and legal beneficial owner of:
10.1The husband's interest in the Company, [Elder] Holdings Pty Ltd;
10.2The husband's interest in [Elder] Family Trust;
10.3The husband's savings;
10.4The MISA secured over the [B] property ( a/c no: […])
10.5The husband's Hilux motor vehicle; and
10.6all items of personal and real property in the Husband's possession or of which the husband is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
11.The wife be declared the sole and legal beneficial owner of:
~~11.1Her Mitsubishis Challenger motor vehicle;~~
11.2Her savings;
11.3Her jewellery; and
11.4all items of personal and real property in the wife's possession or of which the wife is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
Superannuation
12.That each of the husband and the wife retain, to the exclusion of the other, their respective superannuation interests.
Default
13.That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these Orders a Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A(1) of the Family Law Act to execute such documents on behalf of such party.
Section 81
14.Pursuant to Section 81 of the Family Law Act 1975 the parties intend these Orders shall finally determine their financial relationship and avoid further proceedings between them in relation to property settlement and spouse maintenance.
Costs
15.That the husband pay the wife's cost of and incidental to these proceedings.

The husband seeks orders in terms of his Response to an Application For Final Orders filed 8 October 2008. In final submissions learned counsel for the husband said that the husband seeks a division overall as to 70% to him and 30% to the wife and that would entail the husband paying the wife less than $50,000. As it responds to a document that is now much amended I am not sure if the husband seeks the following orders but his Response says that he agrees with the following orders sought by the wife – 1, 4 (but only in relation to compliance with Order 1) 6, 11, 12.1, 12.2, 12.3, 13 14 & 15. Otherwise according to the Response, he seeks:
1.That simultaneously with the Husband’s compliance with Order 1 sought by the Wife, the Wife do all acts and things and sign all necessary documents to enable the Husband to receive the totality of the MISA account secured against the [C] property being an account with the credit balance of $354,000.00.
2.That simultaneously with the Wife’s compliance with Order 1 hereof, the Wife will execute all documents prepared by the Husband’s solicitors transferring any shareholding she may have in [Elder] Holdings Pty Ltd and resign as a director of [Elder] holdings Pty Ltd.
3.That simultaneously with Orders 1 and 2 sought herein, the Wife return to the Husband the following which she removed from the former matrimonial home:
i.Toaster
ii.Cutlery set
4.That within 14 days of the making of these Orders, the Wife provide the Husband with a complete list of the items she removed from the former matrimonial home.
5.That within seven days of the Wife complying with Order 4 herein, the Wife return to the Husband the items he has selected on the list provided they do not exceed half the estimated value of all the items on the list.
6.Costs.

Documents read

The wife relied on the following documents:

Sworn/Affirmed	Filed
Affidavit of the wife	02.06.2009	03.06.2009
Financial Statement	02.06.2009	03.06.2009
Affidavit of Ms R	02.06.2009	03.06.2009

The husband relied on the following documents:

Sworn/Affirmed	Filed
Affidavit of the husband	14.06.2009	16.06.2009
Affidavit of J Elder	23.07.2009	24.07.2009
Affidavit of Professor H	30.10.2009	03.11.2009
Financial Statement of husband	14.06.2009	16.06.2009
Affidavit of Mr L	20.10.2009	22.10.2009

Short history

As at the date of the hearing the wife was 42 years of age and the husband was 46. They started to live together in late 1995, were married in 2000 and separated on 26 September 2007.

Children

There is one child of the marriage: J, who was born in October 2001 and as at the date of the hearing was 8 years of age.

Issues in dispute

Counsel for the wife identified the following issues and with one addition, counsel for the husband agreed:
1.The date of the commencement of cohabitation;
2.Whether at that time the husband had a mortgage secured on the M property and the amount outstanding;
3.The extent of the husband’s role as homemaker, before and after his accident;
4.The impact of the husband’s accident on the contributions of the wife;
5.The extent of the husband’s contributions to D;
6.Whether the husband’s initial contribution in addition to the M property was $271,000 as the wife concedes or $300,000 as the husband asserts;
7.The quantum of the husband’s income after separation;
8.The quantum of the husband’s current income;
9.The extent of the husband’s future earning capacity;
10.The extent of the wife’s future earning capacity;
11.The value of the Elder family Trust - $51,000 (W) or $32,500 (midpoint of the $51,000 - $14,000 range, argued for on behalf of the H);
12.Whether the wife’s David Jones debt should be included as a relevant liability and if so at what figure;
13.The value of the wife’s Long Service Leave

Background facts

The wife has a son from an earlier relationship, D. He was born in July 1990 and as at the commencement of the parties’ cohabitation he was about 5 years of age.
The wife says that the parties and D started living together in late 1995/early 1996. That is what the husband deposed to in his affidavit but in cross-examination said that cohabitation commenced in about September 1996. Given the changes in the husband’s evidence I accept the wife on this issue.
At the commencement of cohabitation the wife had the following assets and liabilities:
Assets

Proceeds of sale N property

$50,000

Furniture

NK

Toyota RAV4

NK

Total Assets

$50,000 +

Liabilities

Car Lease

NK

GE Credit card debt

E$5,000

Total Liabilities

$5,000 +

Superannuation

Wife's Super

E$5,000

The husband owned the M property. He bought the property in 1987 for $130,500. He owned a Toyota Hilux motor vehicle and a Truck and business. The husband asserts that he had $140,000 in savings. The wife asserts that there was a mortgage secured over the M property. The husband disagrees. It transpired from her cross-examination that the wife does not know whether there was a mortgage or not. I accept the husband on this issue. The husband had some superannuation.
It is the unchallenged evidence of the husband’s father that he had a conversation with his son in early 1996 during which he agreed to help his son renovate the M property. The husband obtained an owner-builder licence. The work took two to three months. It is interesting that neither of the parties makes reference to these renovations. The husband and / or his father:
·   Demolished three archways on the front of the building and built a new veranda, consistent with a Federation style;
·   Replaced the roof of the garage and installed box guttering on the garage;
·   Built and rendered brick steps leading from the garage to the house;
·   Dug an absorption pit at the rear of the house;
·   Repaired the cornice in the second bedroom;
·   Painted the property, inside and out, including the roof and the front fence; and
·   Erected a new letter box
The parties initially lived with the husband's parents. The wife says that was for approximately 2 weeks. They then moved into the husband’s property at M (“the M property”).
The wife’s property at N was sold shortly after cohabitation and the wife received $50,000 by way of net proceeds of sale.
The wife was then working as a Secretary earning approximately $500 net per week. The husband was operating a truck business.
The parties each contributed $50 per week to the purchase of groceries and household supplies. The husband attended to the payment of electricity, telephone and rates. The balance of the wife’s income was used to pay groceries, credit card bills, clothes and household items.
The wife attended to housework including washing, ironing, putting clothes away, washing up, dusting, cleaning the inside of the house, purchasing the groceries and cooking meals. The husband attended to the majority of garden maintenance, washing the cars and household maintenance as and when required and occasionally washed clothes. The husband also vacuumed and mopped the house.
From late 1995 to January 2007 the wife received child support from D’s father. From late 1995 to June 2001 the wife paid school fees for D, from her income.
In 1996 the husband sold the truck business. The wife says that he told her that he used the proceeds of sale to discharge mortgage over M property. The husband asserts that there was then no mortgage on the M property and that he set aside the proceeds of sale and used them to buy the E property. Consistent with the earlier ruling, I accept the husband on this issue.
In 1996 the husband commenced employment at P.
In October 1996 the parties jointly purchased the property at E (the E property) for $321,000. The purchase price was funded with $271,000 contributed by the husband and $50,000 contributed by the wife. The husband says that in addition, he paid $9,000 in stamp duty.
Between October 1996 and October 1997 the parties undertook extensive renovations to the E property. The wife took out an owner-builder licence. She says:
·   The husband and wife gutted the existing dwelling and had an extension built to the property;
·   The wife sourced an architect to prepare plans for the extension at reduced cost. The wife met with the architect initially to discuss basic design of the extension. The parties attended subsequent meetings with architect;
·   The parties employed a bricklayer to build the extension. Electrical, plumbing and roofing works were outsourced to various tradespeople.
·   The husband’s father assisted the parties by attending at the property to receive deliveries and oversee works when parties were unavailable to do so;
·   The wife attended at the E property on at least two occasions per week on her way home from work to inspect the work that had been carried out and ensure the property was secure.
·   The parties purchased pre-fabricated roof trusses and beams. The wife obtained quotes for the trusses and beams and arranged delivery of the materials for the roof.
·   The husband’s father built the window frames and door frames for the extension and hung doors throughout the extension.
·   The husband and wife chose bricks used in the construction of the extension together to ensure as close a match as possible to existing brickwork;
·   The husband and wife ripped out the kitchen in the existing dwelling;
·   The wife arranged for her friend's mother who is a kitchen designer, to design and install the kitchen. Wife met with her friend’s mother at the kitchen showroom to discuss layout of kitchen and choose the cupboards and doors to be used in the kitchen and went to various kitchen shops and chose and purchased handles for the cupboard doors and light fittings for the kitchen. Parties charged reduced cost for kitchen.
·   Husband and Wife chose the kitchen appliances together.
·   The parties ripped out bathroom in the existing dwelling and had new bathroom fitted by a plumber. The parties shopped together and agreed upon the bathroom fixtures and fittings and tiles;
·   The wife designed the pattern and layout for the tiles in the kitchen, dining area and back living area of the property. A tiler was employed to lay tiles.
·   Once the extension and the renovations to the property were at the lockup stage, Wife attended at the property and cleaned on a daily basis after the trades people had left.
·   Husband and his father painted the interior of the E property.
·   Husband and Wife sourced and paid for built-in wardrobes to be installed through a wardrobe company.
·   Wife obtained quotes for the purchase and installation of a fireplace. Husband and Wife chose together the fireplace to be installed;
·   Wife purchased fabric to make curtains and cushion covers for the lounge. Wife assisted by Husband’s mother in sewing the curtains and cushion covers;
·   Wife attended various retailers and obtained quotes for plantation shutters to be installed throughout the property.
The husband says that it was mostly he and his father that did the work. He asserts that the wife was at that time working full-time at T Company.
The unchallenged evidence of the husband’s father is that:
·     He and the husband cleared the back yard;
·     He and the husband demolished the rear wall and fibro sunroom, kitchen, laundry and toilet and loaded the waste into skips;
·     He pegged out the extension and he and the husband dig the footings including three 18 inch X 6 foot piers;
·     He constructed the formwork;
·     A plumber installed the drainage and pipework;
·     He and the husband laid down reinforcing mesh and ordered concrete and helped level the slab.
·     He cleaned 2,000 bricks and supervised the bricklayer;
·     He made up nine window frames and sashes and had them glazed;
·     He ordered and re-ordered roof trusses and supervised their erection;
·     He installed new facia boards around the extension and eaves to match the existing house;
·     He and the husband fixed Gyprock ceilings and cornices in the rear extension;
·     He fitted the glazed sashes to the window frames, hung the back door and the interior doors and fitted door furniture;
·     He fitted skirting boards and architraves to the dining room and family room;
·     He built three linen cupboards for the house;
·     He and the husband painted the exterior and interior of the house;
·     He constructed a rear patio – he pegged out the job, constructed form work and poured the slab. He constructed a wooden frame to support an Alsynite roof and tiled the slab with terracotta tiles.
·     He demolished the existing rear wall of the single garage and added an 8 foot extension, including a side access door;
·     He and the husband dug a rainwater pit and an absorption pit;
·     He hung a new front door and French doors at the rear of the property;
·     He and the husband re-pointed the brick work at the front of the property. He bricked up the hole on the front veranda where the old electricity box had been;
The husband paid his father $50 per week. Once the renovations and extension of the E property were completed, the husband and wife paid for a trip to Noosa for the husband’s mother and father. The renovations took about nine to ten months.
The parties borrowed $100,000 from Members Equity to pay for all the renovations. That loan was secured over the M property.
In October 1997 the parties moved into the E property and the M property was rented and remains rented. The rental income from the M property was paid into the husband’s Credit Union account.
From September 1998 to October 2001 the wife worked part-time. She says she worked 4 days per week (the husband says 3 days a week) but frequently worked paid overtime on the 5^th day.
The parties were married in 2000.
In 2000 the parties purchased an investment property at B (“the B Property”) for $305,000 in the husband’s sole name. The purchase price was borrowed in full by way of mortgage from Commonwealth Bank secured over the B and M properties. At all times the property has been rented and the rent applied to the mortgage.
From 2000 to 2004 the rental income from the B and M properties was paid into the husband’s Credit Union account and the husband attended to the payment of mortgage instalments from that income.
On 15 June 2001 the husband was involved in a workplace accident resulting in him spending approximately 2 weeks in hospital and being off work for approximately 1 year. The wife was 6 months pregnant at time of the husband’s accident. The wife visited him in hospital daily.
Once the husband was released from hospital the wife provided daily assistance to the husband and attended to the following:
·    showering the husband;
·    taking the husband to the toilet;
·    preparing all meals for the husband and assisting him with eating;
·    ensuring the husband took his medication;
·    assisting the husband in and out of bed;
·    driving the husband to and attending with him at his medical appointments.
The husband paid D’s school fees from his workers compensation payments and subsequently from his wages until D left school in December 2006. The fees were initially approximately $800 to $900 per term increasing to $2,000 per term in D’s final year.
In October 2001 the parties’ son J was born. The wife ceased paid employment two weeks prior to the birth.
In early 2002 the husband brought a Workers Compensation Claim. The wife assisted the husband with the claim in the following way:
·    attending with the husband at most meetings with his solicitor;
·    corresponding with the husband’s solicitors on his behalf and in particular providing information for preparation of Statement of Claim;
·    proof reading all documents including the Statement of Claim with the husband;
·    corresponding with the Workers Compensation Department on husband’s behalf;
·    making appointments for husband to attend meeting with the Local Member of Parliament in June 2003 to assist in claim.
In 2002 there was a fire at the B property. The insurers deemed the property uninhabitable. The wife liaised with the insurers to arrange repainting and re-laying of carpet. At about that time the husband returned to hospital to have the plate and screws stabilising his left hip, removed. He also attended at the property and discussed the required repairs with the insurance assessor.
In January 2002 the wife resumed employment 3 days per week to assist in meeting the parties’ day to day living expenses. The husband’s mother cared for J while the wife was at work.
In June 2002 the husband returned to work, but not to the position he held prior to accident. He returned to administrative duties on a graded return to work. By January 2003 he was working 7 hours a day performing administrative duties. From 2002 to 16 June 2003 the husband received a full wage in sum of $1,554 gross per week. From 16 June 2003 his wage was reduce to $1,134.73 gross per week. The husband says that he had to take this job if he wanted to stay with his employer as he was not physically able to return to his previous role.
On 30 July 2003 the husband filed a Statement of Claim and Statement of Particulars in the District Court of New South Wales seeking damages for out of pocket expenses, future out of pocket expenses, a Griffiths v Kerkemeyer[2] component (recognising the care provided by the wife), past economic loss and future economic loss.
[2] Griffiths v Kerkemeyer (1977) 139 CLR 161
In 2004 the parties purchased a property at 2C (“the C property”) in their joint names for $704,000. At the same time as purchasing the C property, the husband transferred to the wife a one-half interest in the M property.
The purchase price and costs of the C property were funded as follows:
· $350,000 borrowed by the Wife by way of mortgage from Commonwealth Bank and secured over the M property;
· $361,000 borrowed by the parties jointly by way of mortgage with Commonwealth Bank of Australia secured against the C property.
In November 2004 the husband's compensation claim was settled. He received $650,000 net, by way of damages. They were applied as follows:
a)   $140,000 used to purchase a truck and contract with X Company for the husband through a company and trust structure*;
b)     $354,000 deposited to a MISA account against the C property mortgage;
c)   $156,000 deposited to a MISA account against the M property mortgage.
At around the time of settlement of the husband's compensation claim the husband established Elder Holding Pty Limited as Trustee for the Elder Family Trust. The husband commenced operating a truck business through the Elder Family Trust.
The parties opened a joint bank account with CBA and this account was used to receive rental income from the M, B and C properties and meet the mortgage repayments for the mortgages secured over the three properties.
The parties separated under the same roof in August 2005.
In December 2006 D left school at the end of Year 10 and commenced a building apprenticeship.
On 29 December 2006 the wife sold 1290 IAG shares for $7,649.50.
In January 2007 the wife ceased receiving Child Support from D’s father.
In Early 2007 the wife attended her General Practitioner and was referred to a Psychiatrist, Dr Y. The wife attended 3 or 4 sessions with Dr Y.
In mid 2007 the wife withdrew $500 from a joint CBA account to assist in meeting some of her expenses and those of the children.
In June 2007 the husband transferred approximately $12,000 from his personal savings to the MISA (a)ccount for the B property to reduce monthly interest paid on the loan.
On 17 September 2007 the wife and children (J and D) moved out of the E property and lived with the wife’s step sister and her husband in their partially renovated home. The wife says that she proposed that the tenants at the C property be given notice to vacate and once vacated that the wife and children move into the property. The husband initially refused to give the C tenants notice to vacate. He ultimately agreed in or around October 2007 to give the tenants notice to vacate C property. The husband does not agree with the wife’s version of those events. He contends that the wife initially wanted the M tenants out and when she changed her mind he gave notice to the C tenants and on 28 October 2007 he moved out of the E property and into his parents’ home. He says that the wife and children immediately moved into E property and changed the locks.

At separation the husband’s income was about $78,000 per annum.
In December 2007 the wife and children moved into the C property. The husband later moved into the E property.
The wife borrowed $5,000 from a friend, Ms R to assist with her legal fees and meet day to day living expenses. They included the purchase a bed for D and payment of car registration and insurance. The husband contends that he paid off beds bought for J and D.
In December 2007 the husband subsequently withdrew $15,000 from the joint CBA account and deposited it to the MISA in relation to the B mortgage.
On 20 August 2008 the wife commenced these proceedings for property settlement.
On 2 October 2008 the Child Support Agency issued a Child Support Assessment. Husband's liability for child support: $46.57 per week. The husband says that he initially paid $79.69 per week, then the assessment was changed to $30.23, then $29.38 and then $46.73.
On 22 October 2008 the parties attended a Case Assessment Conference.
On 4 March 2009 the parties attended a Conciliation Conference.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties and Professor H. There are several matters in issue that fall to be determined by reference only to the oral testimony of the parties. The parties do not have perfect recollection.
During cross-examination the wife gave her evidence directly and made proper concessions. She was not successfully challenged on any major aspect of her evidence, save in relation to there being a mortgage on the M property when the marriage commenced. In her affidavit she swore there was a mortgage but she conceded in cross-examination that she did not know whether there was one or not. It was conceded in the husband’s case that the wife was a ‘decent’ witness.
The husband’s credit was damaged immediately upon his entering the witness box. He repudiated the evidence about the commencement of cohabitation and thereby the detailed evidence in several of the following paragraphs of his affidavit. In his Financial Statement the husband disclosed that his income was $1,529 per week made up of $769 in wages as owner driver for Elder Holdings Pty Ltd and $760 per week in rent from the M and B properties. He was obliged to concede in cross-examination that the benefit he receives from the trust/business is $1,460 per week, of which $95 per week is in the form of superannuation contributions. Thus his weekly income is more like $2,220. It is submitted on his behalf that the husband is a truck driver, not an accountant. That is no doubt true but the issue here is his credit. On the question of his income the husband was entirely unreliable.
The parties prepared their evidence with an eye to favouring their own cases but I do not believe that either of the parties set out to mislead the Court. In the circumstances, however, I cannot simply prefer the evidence of one over that of the other on all disputed issues.
The husband’s father was not required for cross-examination.
Professor H gave evidence as a single expert. His credit is not in issue.

Submissions

There is an agreed balance sheet as follows:

ASSETS
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
1	Joint	[C property]		730,000	730,000
2	Joint	[E property]		845,000	845,000
3	Joint	[M property]		650,000	650,000
4	Husband	[B property]		485,000	485,000
5	Husband	[…]Credit Union account (Husband: as at 30.09.09)		7,824	7,824
6	Joint	Commonwealth Bank account […] (as at 19.07.09)		12	12
7	Joint	CBA MISA account re: [B property]		213,892	213,892
8	Wife	[…] Credit Union account		444	444
9	Joint	2001 Mitsubishi Challenger		11,000	11,000
10	Husband	1993 Toyota Hilux Ute		2,000	2,000
11	Joint	[Elder] Holdings Pty Limited (trustee company)		NIL	NIL
12	Joint	[Elder] Family Trust		20,000	4,000
13	Wife	Household contents at [C]		5,000	5,000
14	Joint	Household contents at [E]		5,000	5,000
15	Husband	Loan from Husband to [Elder] Family Trust		145,330	145,330
16	Husband	[…] Shares in NIB		4,420	4,420
17	Husband	2009 tax refund		2,495	2,495
Total		$ 3,127,417	$ 3,111,417

ADDBACKS
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
18	Husband	Legal fees incurred by Husband as at 22 June 2009		56,740	56,740
19	Wife	Legal fees paid by Wife to Etheringtons Solicitors		2,624	2,624
20	Wife	Legal fees paid by wife to York Family Law as at 11/11/09		47,770	47,770
Total		$ 107,134	$ 107,134

LIABILITIES
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
21	Wife	Mortgage over [M property]		339,031	339,031
22	Husband	Mortgage over property at [B]		296,658	296,658
23	Wife	Personal loan from [Ms R]		5,000	5,000
24	Wife	HSBC Visa as at current date		4,809	4,809
25	Wife	Citibank Visa as at current date		4,900	4,900
26	Wife	Aussie Mastercard as at current date		1,800	1,800
27	Wife	David Jones Card as at current date		2,400	NIL
28	Wife	Ask Funding Limited (as at 12/11/2009)		54,153	54,153
Total		$ 708,751	$ 706,351

SUPERANNUATION
Member		Name of Fund		Type of Interest		Wife/de facto partner’s value	Husband/de facto partner’s value
29	Wife	[L] Super		37,485	37,485
30	Husband	[S] Fund		281,011	281,011
Total		$ 318,496	$ 318,496

FINANCIAL RESOURCES
Ownership	Description		Wife/de facto partner’s value	Husband/de facto partner’s value
31
32
Total	$ 0	$ 0

Notes

Item No
12	Husband: The single expert valued the Trust at between $4,000 and $20,000.
28	Wife: The balance outstanding as at September 2007 re: David Jones card $2,545.

The written submissions on behalf of the wife are:
7. CONTRIBUTIONS PURSUANT TO SECTION 79(1) – (4)
Section 79(4) (a)
Financial contributions made directly or indirectly on by or on behalf of a party or a child of the marriage, to the acquisition, conservation or improvement of any property of the parties or any of them.
·At the commencement of cohabitation, the wife contributed savings of $50,000 being the proceeds of sale of a property in [N], furniture and a Rav 4 motor vehicle (W#8(a), H#3). She also had a credit card debt of $5,000 and superannuation of approximately $5,000. (W#8(c), H#2).
·At or about the time of cohabitation, the husband sold his […] truck. He contends he received the sum of $160,000 (H#4). He contends after the sale he then held approximately $300,000 in cash.(H#4). The wife concedes that the husband had $271,000 in cash (W#17).
·At the commencement of cohabitation, the husband contributed his interest in the property at [M] (W#9(a), H#5). The wife contends that the property was subject to a mortgage at the time of cohabitation. The husband contends that the property was unencumbered.
·In October 1996 the parties purchased a property at [E] for $321,000. The husband contributed $271,000 to the acquisition and the wife contributed $50,000 from her pre-relationship savings. (W#17). The parties thereafter conducted extensive improvements and renovations to the [E] property and borrowed $100,000 to fund those improvements (W#18, H#14).
·At the commencement of cohabitation, the husband contributed superannuation and a Hilux motor vehicle.
·Throughout the period of cohabitation, the wife applied all her income and savings for the benefit of the family.
·During the period of cohabitation, the parties maintained separate financial entities until the acquisition of the [C] property in 2004.
·On the 15^th June 2001, the husband was involved in a serious workplace motor vehicle accident. He was hospitalised for an extended period of time and did not return to employment for over twelve months. He thereafter engaged in alternative clerical and administrative employment. He compromised his claim for damages arising out of the accident on the 29^th November 2004 and received $650,000 after payment of legal costs, repayment of worker’s compensation payments and Health Insurance Commission payments (H#45, W#24).
·On the 1^st April 2005, $140,000 from the damages verdict was applied to purchase another […] truck and contract (W#24, H#46).
·The wife concedes that during the period of cohabitation, the husband contributed to the private school fees for the child of her prior relationship [D], but does not concede the quantum of such fees as alleged by the husband.
·Subsequent to the separation between the parties, the husband has retained the benefit of the majority of the property of the parties.
·Subsequent to the separation between the parties, the husband has paid only nominal child support in relation to the child [J] and has paid modest fees for the child to attend a local parochial catholic school.
·The wife has otherwise been almost solely responsible for meeting the vast majority of the costs of support of [J] for the two years that the parties have resided in separate residences subsequent to separation.
·In the agreed balance sheet, the husband seeks a “notional add back” in relation to a transaction involving a $14,000 bank transfer on the 7^th June 1999 (H#27, 28). The wife contends that such contention as to notional add back is misconceived and in no way constitutes a premature distribution of assets as envisaged by the Full Court in Townsend (1995) FLC 92-569.
·Subsequent to separation, the husband retained the benefit of the $15,000 held in the joint Commonwealth Bank savings account (save for a withdrawal of $500 by the wife in May 2007).
·The wife has otherwise encountered substantial difficulties in meeting the cost of periodic support of both herself and the child [J] subsequent to separation, and has borrowed monies from a friend to meet her needs. The wife further has maintained a number of credit card debts by making the “minimum payments” since separation, the debts being incurred prior to separation.
·The wife submits that the monies received by the husband on the compromise of his personal injury claims should not be considered as having the character of a contribution solely on behalf of the husband. Rather, as emerges from the decision in Aleksovski (1996) FLC 92-705 at 87,437, it is a question of the facts of each case. It is important that any recognition by way of contribution as to receipt of the personal injuries money also couples with it the substantial contributions made by the wife to the accumulation and receipt of that quantum.
·The more onerous contributions that were required to be made by the wife subsequent to the husband’s accident must be given appropriate recognition and weight. Her financial and non financial and home making contributions were far more extensive and intensive then they otherwise would have been. The guidance of Justice Wilson in the High Court in Mallett (1984) FLC 91-501 in his well known passage concerning the nature and quality of the wife’s contributions and the tendency to undervalue them or not give them appropriate weight (at page 79,126) is apposite to the circumstances of this case.
·The performance of the wife’s role subsequent to the accident echoes the dicta of the Full Court in Ferraro (1993) FLC92-335 in that:
There are cases where the performance of those roles has what may be described as “special” features about it, either adding or detracting from what may be described at the norm”. (at page 79,572).
·The wife undertook exceptional efforts subsequent to the husband’s workplace related injury to ensure that the family was “financially kept afloat”.

Section 79(4) (b)
The contribution, (other than financial contributions) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage.
·During the period of cohabitation, the wife applied her physical efforts and labours towards renovating the [M] property (W#38, 39) and the [E] property (W#40 to 57 ), and the [B] property (W#58 to 60).
·The wife contributed towards the conveyancing of each of the investment properties saving the parties professional fees and also the management of the investment properties that were rented saving the parties management fees (W#61, 62).
·The wife concedes that the husband’s father undertook work in relation to the [E] renovations. The probative value of the extensive affidavit evidence filed in the husband’s case on this issue is subject to objection.
·The wife concedes that the husband applied his physical efforts and labours to the renovations of the [M], [E] and [B] properties.
·During the conduct of the husband’s compensation claim for damages, the wife engaged in substantial activities in progressing the legal claim.
·During the period subsequent to the husband’s workplace accident, the wife undertook a primary role in maintaining the financial balance in the home by way of ensuring that the parties could meet their living expenses and other commitments (W#21). This role was made more onerous by the pregnancy and birth of the child [J], and the necessity for the wife to take reduced maternity leave and to otherwise assume a greater role in the running of the household (W#14).
Section 79(4) (c)
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any of the children of the marriage, including any contribution made in the capacities of homemaker and parent.
·During the period of cohabitation, the wife was the person who was primarily responsible for meeting the needs of [J] on a day to day basis.
·The husband’s capacity to assist in meeting the child’s needs were very much retarded subsequent to his injuries and disabilities occasioned in his workplace accident.
·Subsequent to the separation between the parties, the wife has been the person who has been primarily responsible for meeting [J’s] needs on a day to day basis.
·During the period of cohabitation, the wife was the person who was primarily responsible for attending to the domestic tasks in the home.
·Subsequent to the husband’s workplace accident,, the wife undertook extensive additional roles in showering, clothing and preparing meals for the husband. A portion of the wife’s role in meeting the husband’s care was included in a “Griffiths v Kerkmeyer” component of the husband’s claim for damages.
·The wife’s role as a homemaker and parent was made substantially more onerous by way of the injuries and disabilities received by the husband arising from his workplace accident from mid 2001 until his acquisition of the […] truck in April 2005. The husband makes some concessions in relation to the more onerous role undertaken by the wife (H#36).
a)Section 79(4) (e)
b)
c)These are matters referred to Sub Section 75(2) as far as they are relevant:
THE WIFE CONTENDS THAT HER CONTRIBUTIONS UP TO THE DATE OF THE HEARING SHOULD BE FOUND TO BE 37.5%.
8. FACTORS TO BE CONSIDERED PURSUANT TO SECTION 75(2)
Section 75(2) (a)
The age and state of health of each of the parties;
·The husband is aged 46 years.
·The wife contends the husband is in good health.
·The husband gives some evidence as to the injuries and disabilities arising from his workplace accident. The wife is aged 42 years.
·The wife is in good health.
Section 75(2) (b)
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
·The current income of each party is similar
·The admissible affidavit evidence of the husband is to the effect that his capacity to engage in some sporting activities and gardening is restricted
·The injuries and disabilities suffered by the husband have not in any way adversely impacted on his capacity to work full time over the past four and a half years in the operations of a […] truck.
·It is contended that the husband enjoys a superior income earning capacity into the future.
·The single forensic accounting expert gives evidence as to award rates for […] truck driving without overtime as being in excess of $42,000 per annum. (pages 16 & 17, at paragraph 76 of his report). Mr [L] provides an opinion that suggests that the husband may not be receiving sufficient remuneration for the level of work performed and implies that in the event he elected to do so, he would earn an greater income. He further opines in paragraph 74 that $1,200 of overtime would produce an additional $24,216 in salary/income per annum.
·On the contribution findings contended by the wife, the husband will receive the benefit of twice the value of property retained by the wife.
Section 75(2) (c)
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
·It is not the subject of contest that the wife will continue to have the care of [J] until he is self supporting.
·The husband in effect, spends four nights out of each 28 nights with [J], together with each Tuesday during the school term from after school until 8 pm.
Section 75(2) (d)
d)Commitments of each of the parties that are necessary to enable the party to support;
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
·Neither party has an obligation to support any other person save the wife and [J] in the case of the husband, and the wife, [J] and [D] in the case of the wife.
Section 75(2) (e)
The responsibilities of either party to support any other person;
·The wife presently struggles to receive sufficient income on a periodic basis to meet the needs of both herself and [J].
Section 75(2) (f)
Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
·Neither party seeks a superannuation splitting order.
·The wife promotes an approach by way of a single pool of property for adjustment which include the parties’ respective superannuation entitlements.
Section 75(2) (g)
Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
·The standard of living enjoyed by the husband is substantially superior to that undertaken by the wife.
Section 75(2) (l)
The need to protect a party who wishes to continue that party’s role as a parent;
·The employment hours of the wife ensure she is primarily available to care for [J]
Section 75(2) (m)
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
·The wife is not cohabiting with any other person.
Section 75(2) (na)
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
·The quantum of child support paid by the husband subsequent to separation has been nominal and is not consummate with the income, property and financial resources of the husband.
·The wife contends that the husband is likely to only pay nominal periodic support in respect of [J] in the future.
Section 75(2) (o)
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
·The wife repeats her assertions as to the husband enjoying the bulk of the parties’ property to the exclusion of the wife subsequent to separation.
·Subject to the evidence, the wife may contend that the husband has failed to engage in a full and frank disclosure of his financial circumstances
THE WIFE CONTENDS THERE SHOULD BE AN ADJUSTMENT OF 17.5% IN HER FAVOUR BY WAY OF THE S75 (2) FACTORS.
ACCORDINGLY, THE WIFE WOULD HAVE 55% OF THE AVAILABLE POOL OF PROPERTY.

In oral submissions for the wife it was argued that the court would not apply an asset by asset approach because contributions were made to most assets during the marriage. It is submitted that the Court would view this not as a 9 or 10 year marriage but rather as a 14 year period during which contributions were made.
It is submitted that the husband cannot deny the wife her argument that his child support has been inadequate. While it is true that the wife could and should take up her rights to seek a departure through the agency, here it has been discovered that the husband mislead the agency about his income, understating it by $25,992 per annum. It is submitted that it would be helpful in the child support context if the Court was to make a finding about the husband’s income.
The written submissions on behalf of the husband are:
SECTION 79 CONTRIBUTIONS
1.The [M] property was owned by the husband unencumbered prior to marriage.
2.The husband contributed $301,500, and a further $100,000 for renovations in respect or the [E] property. The wife contributed approximately $50,000 in cash towards its purchase.
3.The [C] property was purchased with a contribution of $354,000 from the husband’s personal injury verdict, the balance made up by a mortgage borrowing.
4.The [B] property was purchased with $305,000 from the husband’s personal injury claim.
5.The husband worked full-time until his workplace injury.
6.The wife brought with her to the marriage a child of another relationship and both parties supported him. However, the Husband paid private school fees for this child.
7.Between 9 September 2007 and September 2008, the husband made all mortgage payments associated with the [C] property in which the wife was residing.
8.The husband made a contribution as homemaker and parent, including doing approximately 60% of the family’s washing and ironing, washing cars, gardening, mowing lawns, attending to repairs, handyman work, vacuuming and mopping. For the last 18 months of cohabitation, the husband cooked and shopped for himself.
8.SECTION 75(2) FACTORS
1.The husband’s capacity for earning income is diminished due to his workplace injury.
2.The husband is aged 46 years.
3.The wife is aged 42 years and is able to support herself.
4.Each party has a duty to financially provide for the child, [J].
In oral submissions for the husband it was argued that the court would apply an asset by asset approach. In particular the following assets were identified. Thus it is submitted on behalf of the wife that the contributions to the:
·     C property were equal;
·     E property were as to $289,000 of the $330,000 purchase price, by the husband. That the husband then contributed $100,000 towards the renovations.
·     M property were 100% by the husband – he owned the property at the commencement of cohabitation;
·     B property were 55% by the husband, as he provided the 10% deposit;
·     Commonwealth Bank MISA (a)ccount in respect of the B property, were provided as to 100% by the husband;
·     Elder Trust, were 100% by the husband;
·     Loan by the husband to the Elder Family Trust, was 100% by the husband.
It is submitted that the preponderance of work on the M and E property was undertaken by the husband and his father. It is noted that the husband’s father was not cross-examined at all and that there was no significant cross-examination of the husband on this point.
The husband’s wages exceeded those of the wife. Post separation the wife had the benefit of the use of the C property while the husband lived in the E property.
It is conceded that the each of the parties made a proper contribution as parent and homemaker.
It is submitted that the husband’s contributions far exceeded those of the wife. It is submitted that contributions were made in the context of a marriage of only 9 - 10 years.
As to the section 75(2) adjustments – it is submitted for the husband that:
·The husband will receive more property than the wife because of his greater contributions;
·The husband is 4 years older than wife;
·The wife has the capacity to increase her income. She works 4 days a week. She herself made enquiries of her current employer;
·As to the husband’s earning capacity – the husband received about $750,000 in compensation. The husband is likely to require hip and knee replacements;
·The evidence of Professor H cannot be discounted. The husband is symptomatic. It is unfair to be critical of the lack of certainty in Professor H’s estimates – he cannot be specific about possible operations and the consequential interruption of career and cost;
·The husband’s contributions to J;
·The husband’s contributions to D (Robb & Robb)
It is submitted on behalf of the husband that an adjustment to the wife should be no more than 5% and could be as little as 2.5%. It is submitted that the adjustment could not be as much as 25%.
It is submitted for the husband that the format of orders proposed on behalf of the wife is acceptable save that if the payment to the wife is greater than the balance of MISA (a)ccount by too much then the property might need to be sold.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [3]
[3] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30]    To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)      Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)      Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c)       In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)      where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)      where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
The parties have settled a joint balance sheet and the only issues left to be determined relate to the value of the Elder Family Trust and of the wife’s liability to David Jones.

The Elder Family Trust

The single expert, Mr L, prepared a valuation report. In his opinion Elder Holdings Pty Ltd is simply the trustee of the Elder Family Trust and has no value. The husband’s truck carting business operates under a 2005 agreement between the corporate trustee and X Company, a product supplier. The business is the main asset of the Trust. In Mr L’s opinion the trust has a value of $4,000 to $20,000.
Relevant further information came to light in the course of the trial. It transpires that in addition to moneys paid into the Trust’s account by X Company, that company also pays $2,166 per month ($25,992 pa) into the husband’s S1 Credit Union account. Mr L was not available to consider the impact of that information on his opinion. A Ms I works with Mr L and assisted him in preparing the original report. When Mr L was not available to discuss new material with the parties’ counsel, that information was provided to Ms I. In Ms I’s opinion, the amended value for the trust is $14,000 to $51,000.
Learned counsel for the husband argues that I could fix the value of the trust at the mid point in the range. That would be $32,500. It is submitted on behalf of the husband that the act of valuation is a combination of art and science. In circumstances where the valuer has expressed the value as a range, unlike the situation of a range of values between competing experts’ valuations, it is submitted that I would be free to elect the mid point of that range as a way of identifying a value for the trust.
Learned counsel for the wife argues that I should find that the value is $51,000. It is submitted on behalf of the wife that the husband failed to give adequate disclosure and on that basis the higher end of the range should be adopted.
In Phillips and Phillips [2002] FamCA 350; (2002) 29 Fam LR 128; (2002) FLC 93-104 the Full Court said:
43.In proceedings pursuant to s.79 of the Act the first step is to identify and value the financial circumstances of the parties being property, liabilities and financial resources. In undertaking this task the Court is frequently confronted with issues of identification and valuation of assets. In Lenehan and Lenehan (1987) FLC 91-814 the Full Court said at p.76,142:
“A trial Judge, as part of his ultimate responsibility under sec. 79 or otherwise, is normally required to determine a number of issues. Some of those issues may properly attract the evidence of expert witnesses. In appropriate circumstances their opinions are admissible to assist in the determination of such an issue. It is the responsibility of the trial Judge to take into account the opinions of such witnesses; however the ultimate duty of the Judge is to determine the issue on the whole of the material before him including such opinions. The expert evidence is called to enable the Judge to form his own independent judgment on the matter by the application of the appropriate principles.”
In The Commonwealth v Milledge (1953) 90 C.L.R. 157 the High Court at pp.161-162 said that the correct approach to be applied to the resolution of a valuation dispute should be a common sense endeavour after consideration of all material to fix a value satisfactory to the mind of the Court as representing the value.
As to ‘appropriate principles’ there is no fixed rule as to the proper method of valuation and the preferred methodology depends upon the facts of the case: Mallet v Mallet (1984) FLC 91-507 at p.79,121 per Mason J and Georgeson and Georgeson (1995) FLC 92-618 at p.82,218. However, the Court cannot adopt a valuation methodology that is fundamentally flawed and not applicable to the facts of the case: Elsey v Elsey (1997) FLC 92-727.
If there is a dispute as to the value of an asset and the Court prefers one expert to another, then reasons for the preference should be stated: Gamer and Gamer (1988) FLC 91-932 at p.76,746-76,747. Where there is a discrepancy between two or more values it is not open to the Court merely to adopt a mean or average figure between the rival opinions: Lenhan and Lenehan (supra) at 76,142. However, this does not mean that, when faced with two competing valuations, the Court is bound to accept one or the other. The Court is able to form its own separate view as to the value by the proper application of established principles of valuation. In Borriello and Borriello (1989) FLC 92-049 the Full Court, referring to the decision of the High Court in The Commonwealth v Milledge (supra), said at p.77,558:
“It is, we think, apparent that the High Court was not laying down a principle that the trial Judge was obliged to accept any particular valuer, but rather that it was necessary for him to satisfy himself by means of the application of proper principles, that he had arrived at the value of the property on the relevant date. If that value happens to be different to the values ascribed to the relevant property by the valuers called in evidence, this in itself does not affect the validity of the judge’s finding, provided that he has applied proper principles”.
However, in Borriello the Full Court also said at p.77,559:
“We are not however to be taken as saying that we necessarily agree with the conclusion of the Full Court that the fact that the trial Judge in Lenehan’s case had taken the midpoint between the two valuations necessarily vitiated his decision. We can envisage situations where a trial Judge may be left in the position of considering that the two competing valuations represent a range and genuinely considering that the true valuation lies at or about the midpoint. Valuation is rarely such an exact science that in such circumstances a Judge could realistically conclude that the correct valuation was, for example, 55% rather than 50% less than the gap between the two valuations. In such a case it would be perfectly proper for the trial Judge to adopt a midpoint valuation. We think that a Judge, faced with a gap between two or more valuations, where the Judge considers that on the probabilities the higher or lower valuation as the case may be should be lowered or increased by some percentage to arrive at the true value, is perfectly at liberty to so adjust it as he sees fit. As we see it the vice complained of in both Milledge’s case and perceived by the Full Court in Lenehan’s case was the use of means and averages without the application of proper principles”.
If there is a disparity in the evidence, such that it is too difficult and complex for the Court to accept a valuation or come to a separate conclusion as to value on the application of proper principles and methodology, it may be a more proper solution for the Court to consider a sale of the property. In Little and Little (1990) FLC 92-147 the Full Court said at p.78,020:
“Whilst a trial judge should determine a disputed issue of valuation where the evidence enables him to do so, we do not accept that there is an obligation cast upon him to determine such a disputed issue irrespective of the state of the evidence. It may be such that a determination is not possible. In such a case, as in a case where there is a very considerable disparity in the valuation evidence and other evidence indicates that the actual ascertainment of the true value is difficult and complex, the proper solution as between the parties may be to order a sale.”
In Smith and Smith (1991) FLC 92-261 the Full Court said at p.78,759:
“…where the state of the evidence makes the process of valuation hazardous or uncertain, or where there are wide differences between legitimate valuations because of a volatile market or peculiarities relating to the specific property or otherwise, the ascertainment of value by judicial process may become too uncertain and the preferable course is to order the sale of the property so that its real value can be revealed by market forces.
…
The fact that each of the parties seeks a transfer of that property and neither seeks a sale is not in itself a reason for not adopting that approach: indeed it may emphasize the desirability of doing so in order to avoid the lottery effect which may be involved in choosing between one party and the other.”
Given that the value of the land was the most important issue, in our view his Honour was entitled to consider the size of the land as determinative. In the result we are of the opinion that it was within his Honour’s discretion, on the evidence, to reject the opinion of the wife’s valuer.
It is then submitted that the trial Judge was in error in that he made no attempt, after consideration of all of the material, to find a value for the property. The submission suggests that once his Honour determined that he could not accept the evidence of the parties’ valuers, he had an obligation to make a finding as to value having regard to the evidence and the application of appropriate principle. If a trial Judge is unable to accept the opinion of value given by the parties’ experts what he/she cannot do is simply take the mean or average of the two opinions. Further, a trial Judge cannot approach the task on the basis that there is an obligation to prefer one opinion over the other. If a trial Judge is unable to prefer one opinion over the other then he/she may determine a value having regard to the evidence and the application of proper principle. However, the ability of a trial Judge to reach a separate opinion as to value depends on the evidence and other considerations such as the type of property being valued and the appropriate method of valuation. If a trial Judge is of the opinion that he/she cannot undertake this task then it is within his/her discretion to require that further evidence be given addressing the issue or in appropriate cases ordering a sale of the relevant item of property. In our view, a trial Judge should give reasons why he/she is unable to reach a separate opinion of value where the trial Judge has rejected the opinions of the parties’ experts.

The greater non financial contribution was made by the husband or on his behalf. An important aspect of those contributions was the work undertaken by the husband’s father.

Section 79(4)(c) contributions

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage. Here there is one child who falls within the relevant definition. The contributions made by the husband to D can also be recognised and I will do that under section 75(2)(o). See In the Marriage of Robb.
There are disputes between the parties on this issue but there is also a great deal of common ground. The wife made a greater contribution by way of homemaker, than did the husband.
In the early years of the relationship the wife attended to housework including washing, ironing, putting clothes away, washing up, dusting, cleaning the inside of the house, purchasing the groceries and cooking meals. The husband attended to the majority of garden maintenance, washing the cars and household maintenance as and when required and occasionally washed clothes. The husband also vacuumed and mopped the house.
There is a dispute about the extent of the husband’s role as homemaker, before and after his accident. The husband conceded he could not care for himself for 10 weeks after accident. He conceded that he was unable to make a homemaker contribution for a period after his accident. It is the wife’s evidence that once the husband was released from hospital the wife provided daily assistance to the husband and attended to the following:
·    showering Husband;
·    taking Husband to the toilet;
·    preparing all meals for Husband and assisting him with eating;
·    ensuring Husband took his medication;
·    assisting Husband in and out of bed;
·    driving Husband to and attending with him at his medical appointments.
The wife had the primary care of J.
The husband gives evidence about ongoing physical restrictions caused by the accident and persisting as at the date of the hearing. He says that those symptoms have increased over the past few years. He says that since the accident he can only do a limited amount of gardening for a short period of time as his back, left hip and sciatic nerve injury and left knee cause considerable pain. The accident must have prevented him from making the same contribution as parent and homemaker after the accident, as he did before it.
The wife made the greater contribution as homemaker and parent.

Conclusion on Contribution

Significant contributions were made by the parties over a substantial period. The greater contribution was made by the husband and on his behalf. It is conceded in the wife’s case that her contributions were 37.5% compared to 62.5% by and on behalf of the husband. Although no figure is advanced in the husband’s case, he argues for a property settlement of 70% to him and 30% to the wife. Working backwards from his proposed adjustment in the range 2.5% to 5% to the wife under section 75(2), I take it that the husband asserts that the contributions were in the range 72.5% - 75% by him or on his behalf and 25% - 27.5% by and on behalf of the wife.
I find that the various contributions of the parties would properly be acknowledged by a finding that they were made in the proportions 32.5% by the wife and 67.5% by and on behalf of the husband.
I have not adopted the asset by asset approach proposed on behalf of the husband but will refer to it now as a check on my finding. The husband came into the marriage with the M property and $280,000 - $300,000. There is no evidence of the value of the M property in late 1995. It was bought for $130,000 in 1987 and is valued at $650,000 today. For the sake of argument I will allow $550,000 for the imbalance in initial contributions and the entirety of the husband’s compensation payment ($650,000). Notionally ignoring those contributions would leave the assessment of contributions to be made against a revised pool of $1,654,603 ($2,854,603 - $1,200,000). A finding that the contributions to that pool were otherwise equal would presumably be open on the evidence. That would entitle the wife to $827,301 or nearly 29% of the overall net assets. In that context the wife can justifiably assert that she contributed to the compensation settlement. She contributed directly in supporting the husband’s application and indirectly in the form of practical support for the husband – the Griffiths v Kerkemeyer claim. Although it came in the form of a settlement, part of the husband’s claim was for past economic loss. There are various other aspects to the parties’ contributions - the greater non-financial contribution by and on behalf of the husband and the wife’s greater contribution as parent and homemaker. Having regard to those matters, in my view, 29% is at or near the bottom of a range of proper findings on the wife’s contributions.
In that context I am comfortable in finding that the parties’ contributions overall were made in the proportions 32.5% by the wife and 67.5% by and on behalf of the husband.

The other matters in Section 79

Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no relevant effect.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (c), (k) and (o).

(a) the age and state of health of each of the parties;

First, as to the age and state of health of each of the parties. The wife and husband are 42 and 46 years of age, respectively. The wife is in good health. In 2001 the husband suffered injuries as a result of a head on collision between a van he was driving and a large fork-lift. He sustained multiple severe injuries including fractures of his jaw, ribs, broken teeth, a dislocated left hip and fractured pelvis. In the accident he injured his left sciatic nerve. He was initially hospitalised for two weeks for reduction of the dislocated hip and the insertion of plates and screws to maintain its position. He was readmitted two months later due to pain in his left knee and underwent an arthroscopic procedure to remove cartilage. In February 2002 the husband readmitted for the removal of the metal screws and plates that immobilised his hip.
Professor H works with the Australian Medico-Legal Group and is the single expert in relation to the husband. He describes his expertise as Orthopaedics Rehabilitation. He was retained to prepare a report concerning the husband’s current physical health, as well as his future health, domestic and medical needs and work capacity. In a letter of instructions under the hand of the parties’ solicitors, dated 26 August 2009, he was asked to address:
1.[The husband’s] present medical condition;
2.Your prognosis of [the husband’s] medical condition;
3.Future medical treatment (if any) and the cost of such treatment and domestic assistance (if any);
4.The effect of his medical condition and/or prognosis on his capacity to work, both currently and in the future (including the type of work he would presently be able to undertake currently (sic), and the type of work he would be able to undertake in the future);
Professor H was provided with reports and clinical notes from four Orthopaedic Surgeons associated with the workers compensation claim and several radiological reports. The most recent of the reports was dated 2004. In the letter of instructions he was also told:
“[The husband] instructs us that since early 2004 (sic) has not had any treatment or reviews with an orthopaedic surgeon or General Practitioner, and has not had any imaging since his compensation claim was settled in 2004. We would therefore be grateful if you would advise whether it would assist you for [the husband] to have updated medical images taken prior to his appointment with you, or prior to you providing us with your report.
[The husband] has instructed us that the reason for him not having regular reviews with his GP or orthopaedic surgeon is that his symptoms had stabilised, and he did not fell it necessary to have regular reviews where no change in treatment was required to warranted.
[The husband] is currently taking Glucosamine/Chondroitin daily and paracetamol as needed (approximately 3 t0 4 times per week).
On or about 1 April 2005 [the husband] purchased a [truck] cartage contract and his has been working as an owner/operator of this business. The business entails him driving the […] truck on a full time basis.”
Professor H saw the husband on 14 September 2009. The husband told Professor H that:
“he is crippled by low back pain, a major problem ever since his accident and there is radiation of this pain into his left lower limb as far as the knee.
The sciatic nerve injury has left him with a sensation of radiating pain at the back of his thigh and even his lower leg where there is a sense of a tight elastic band sometimes.
He finds that his left foot sometimes collapses as if it had lost its circulation but has not made him fall.
There is quite a lost of paid about his pelvic fracture and there is pubic pain, particularly when, for example, a small child jumps on him. The left hip is very painful and getting worse. There is limitation of movement and there is a similar problem with the left knee which is stiff and sore.
He has to take Glucosamine and Chondroitin tablets as well as taking analgesics to control the pain in his back, hip and knee.
He finds that he cannot sit for long and his working hours are limited because of this.
Whilst he is working as much as is necessary in running his […] truck, he is well aware of the fact that he will not be able to do this indefinitely.
In Professor H’s opinion, the husband’s left hip is extremely likely to eventually go on to develop progressive osteoarthritis, culminating in the need for total hip replacement surgery. There are signs of osteoarthritis is the husband’s left knee and if that gets worse he may well eventually come to knee replacement surgery. In both cases, Professor H says it would be highly desirable to postpone that surgery for as long as possible. Professor H concludes that the husband’s working life expectancy is greatly reduced. He says:
“(the husband) is very unlikely, in my opinion, to be able to work until normal retirement age. His past has been in physically demanding occupations and his is likely to eventually require to be working in a semi-sedentary job.”
Professor H opines that the husband suffers ongoing pain in his back, radiating to his left lower leg and pain and restricted movement in his left hip and knee. His condition will gradually deteriorate. He will eventually need hip and knee replacement surgery, the cost of which could be of the order of $50,000 for each operation, prior to Medicare or health fund rebates. There would also be subsequent physiotherapy / rehabilitation and lengthy periods of absence from work. The husband should be regarded as unable to attempt physically demanding work at the present time. Jobs requiring frequent heavy lifting would be beyond him as would any occupation requiring him to be up and about for lengthy periods or sitting for lengthy periods. He will eventually be fit for semi-sedentary work.
Professor H was cross-examined. He conceded that he did not know the hours of the husband’s work now, whether any modifications had been made to the husband’s truck, what the husband’s work actually entailed, what the husband’s work at P involved and what hours he worked in that job. The Professor understood that as a part of the worker compensation settlement the husband could not return to work for P but accepted the proposition put by the wife’s counsel that he may well be able to do similar work for another employer. It was put to the professor that if he did not know:
·          What the husband actually does on the truck;
·          Whether any modifications had been made to the husband’s truck; and
·          His current working hours
then perhaps his opinion about the working life expectancy of the husband might be wrong.
The gist of Professor H’s response to that proposition was that it is obvious that the husband’s working life in any role, whether as a foreman, in a clerical job or whatever, will be reduced. In cross-examination he repeated the earlier proposition from his report that the husband will need a hip replacement and might need a knee replacement. Professor H is unable to say when the husband’s hip and knee will need to be replaced. That will depend on the degeneration of the joints and the resultant pain. Until the pain is at a level that necessitates the surgery, it should be deferred as long as possible. Professor H’s estimate of cost is a “pretty wild guess” and in any event, omits rebates from Medicare or a health fund.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The wife’s income is $838 per week made up of $672 by way of salary as a Secretary, $70 in Family Assistance, $46 in child support and $50 in superannuation contributions made by her employer.
The wife lives in the parties’ C property with her sons, D and J. They have no income.
The wife’s expenses are as follows:

Expense

Amount

Income tax

$90.00

Comprehensive car insurance NRMA

$30.00

Motor vehicle registration Mitsubishi

$12.00

Visa card repayments HSBC

$35.00

Visa card repayments Citibank

$25.00

All other expenditure

$699.00

Total

$891.00

Of that expenditure some unidentified proportion is expenditure on behalf of J and D. The wife has a weekly deficit.
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is the husband’s case that the wife is not fully exercising her earning capacity. The wife virtually conceded as much in cross-examination. She made enquiries with her current employer about working more hours. The reason she did that was presumably because she thinks she has the capacity to work those hours. This not a matter of great moment. The impact on the wife’s income would not by significant.
The husband’s income is $2,220 per week. That was not what he deposed to in his Financial Statement. There the husband disclosed that he receives $1,529 per week made up of $769 in wages as owner driver for Elder Holdings Pty Ltd and $760 per week in rent from the M and B properties. It transpired during his cross-examination that the benefit he receives from the trust/business is $1,460 per week, of which $95 per week is in the form of superannuation contributions. The husband lives alone.
Although the arithmetic in his Financial Statement is wrong, the husband puts his expenditure as follows:

Expense		Amount
Income tax		$169.00
Rates & unit levies		$40.00
Mortgage on B property		$162.00
Other rates and unit levies		$219.00
Health Fund contributions – NIB		$47.00
Home Contents Insurance premiums – NRMA		$5.00
Home Building Insurance premiums – NRMA		$7.00
Child support payments		$47.00
Other expenses		$779.00
Food	$100.00
House supplies	$30.00
House repairs	$20.00
Gas	$13.00
Electricity	$16.00
Telephone	$25.00
Car maintenance	$20.00
Clothing and shoes	$45.00
Child activities	$15.00
Medical dental and optical	$43.00
Entertainment & hobbies	$50.00
Holidays	$214.00
Education expenses	$28.00
Chemist pharmaceuticals	$30.00
Gardening / lawn mowing	$10.00
Cleaning	$20.00
Repairs furnishings and appliances	$10.00
Dry cleaning	$5.00
Books and magazines	$15.00
Gifts	$50.00
Hairdressing, toiletries	$20.00
Sub-total	$779.00
Total		$1475.00

Of those expenses $200 is applied to the expenses for the child, J. On those figures, the husband has a substantial weekly surplus. It is not suggested that the husband is not exercising his earning capacity.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

J lives with the husband on a four week cycle, from Friday afternoon to Sunday evening on the first weekend, from 4.00 pm Saturday to 6.00 pm Sunday on the 3^rd and 4^th weekends and from after school to 8.00 pm every Tuesday. Otherwise the child lives with the wife. J is 8 years of age. There will be many years before J ceases to require close supervision out of school hours. The major impact of that supervision falls to the wife.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out the evidence in relation to the parties’ expenses.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

The wife receives Family Assistance and both parties have superannuation interests.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

There is no evidence of either party planning further study or intending to set up in a new business.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

This is not a relevant matter.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The wife undertook the main parenting role and that allowed the husband to maintain employment on a full-time basis. Her paid employment was part-time. However, the husband came to the marriage running a truck cartage business and leaves it in similar circumstances. It cannot be said that the wife contributed to the husband’s earning capacity.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The parties’ arrangement had the wife taking the main parenting role and leaving the husband to pursue full-time employment. It is likely that the marriage restricted the wife’s earning capacity in the sense that she was not able to continue a progression in any field and presumably lost the benefits of a long history of full-time employment such as long service leave and opportunities for promotion.

(l) the need to protect a party who wishes to continue that party's role as a parent;

The wife made enquiries about working an extra day. I take it that whatever restrictions are imposed by her need to supervise J, she thinks that working 5 days a week may be practicable.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

Neither of the parties has a new partner.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

There is a modest child support assessment because the husband understated his income. The wife will ensure that situation is corrected.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Contributions were made by the parties to D. The Full Court considered the issue of contributions made to children who are not the children of both parties to a marriage. It has been held that contributions to such children cannot be recognised under section 79(4)(c). In the Marriage of Robb(1994)18 Fam LR 489 the Full Court dealt with that interpretations made by Mullane J at first instance. The Full Court said at p 500:
This construction is, in our view, placed beyond doubt by his Honour's opening statement in relation to ``Contributions To Property And To The Welfare of The Family'’ (Paras (a), (b) and (c) of subs 79(4) of the Family Law Act) where he said:
For the purposes of subs 79(4)(c) the family does not include the children K and B of the wife's previous marriage as they are not within the usual meaning of the expression, ``children of the marriage'’, used in that paragraph. (See the Full Court of the Family Court of Australia in In the Marriage of Mehmet (1986) 11 Fam LR 322 ; [1987] FLC 91-801 but cf Cohen J in In the Marriage of Molen (1992) 16 Fam LR 203 ; [1993] FLC 92/2-344 at Fam LR 205-6 FLC 76,649/2-50).
`Thus, we do not think that his Honour fell into the error of double counting in respect of the husband's contribution to the welfare of B and K and ground 8 is therefore not made out.
In relation to ground 4, just as the husband's contribution to the welfare (including the financial support) of the wife's children of her former marriage, for the reasons given by his Honour in the passage from his judgment last quoted (with which we agree), could not be taken into account as a contribution by him under s 79(4)(c), so too the wife's contribution to the welfare of those children could not be taken into account on that basis. However, as his Honour did (in our view correctly) take the husband's contribution to those children into account under s 75(2)(o), the question arises whether he should have taken the wife's contribution to the welfare of those children into account also, under that paragraph of s 75(2). This raises the question whether the fact that a party to a marriage contributes during that marriage to the welfare of his or her own children of a prior marriage is a fact or circumstance which the justice of the case requires to be taken into account in that party's favour, at least, in circumstances where the other party's contribution to that welfare has been taken into account as a fact or circumstance in that party's favour.
In considering whether the justice of a case requires some act done by a party to be taken into account under s 75(2)(o), the court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss 66a and 66b of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s 66g, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Pt VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s 75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife's favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman's notions of justice.
In our view, therefore, his Honour did not err in failing to give any weight to the wife's contributions to the welfare of her own pre-marital children.
Thus the only relevant contributions made to D are those of the husband.
From late 1995 to January 2007 the wife received child support from D’s father. The parties applied family income to the support of D. From late 1995 to June 2001 the wife paid school fees for D, from her income. In January 2007 the wife ceased receiving Child Support from D’s father. The husband paid D’s school fees from his workers compensation payments and subsequently from his wages until D left school in December 2006. The fees were initially approximately $800 to $900 per term increasing to $2,000 per term in D’s final year.
D was cared for, housed, fed and educated in the parties’ household. In particular the husband collected D from school, at least in the early period of the marriage. D concluded his schooling at a school where the senior school fees were as much as $2,000 per term.
Care is needed not to double count contributions. I have already given the parties credit for their financial contributions. Those contributions cannot be counted again, save to record that in relation to D, they were in effect contributions made for the sole benefit of the wife. I hasten to say, no doubt D was a member of the family, loved and cared for by both parties. The approach cited with approval from Robb and Robb nevertheless requires credit to the husband for those contributions.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the parties.

Section 79(4)(f)

There are no other relevant orders made under the Family Law Act 1975.

Section 79(4)(g)

There is a modest child support assessment. On the basis of the new evidence about the husband’s income, that will no doubt be increased.

Conclusion

It is agreed that there should be an adjustment in favour of the wife. The wife seeks a 17.5% adjustment under section 75(2). The husband argues for an adjustment of between 2.5% and 5% to the wife. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
ØThe husband is 46 and the wife is 42 years of age;
ØOn the basis of a division in the proportions 67.5% to the husband and 32.5% to the wife the husband would retain about $1,000,000 more in net assets than the wife;
ØThe husband has a greater income and income earning capacity than the wife;
ØThe husband’s health is compromised as a result of a workplace accident. That may shorten his active working life and is likely to involve substantial medical cost;
ØIt is likely that the marriage had an adverse impact on the wife’s earning capacity;
ØJ will spend more time with the wife than the husband;
ØThe husband provided support, accommodation and for some years funded an education for D.
It is agreed that there should be an adjustment in favour of the wife. The matters set out above call for countervailing adjustments but taken together they warrant a substantial adjustment from the distribution based on contributions alone. It is necessary to take account of the dollar value of any adjustment. The 17.5% adjustment sought by the wife would represent about $500,000, making a difference in the final property distribution of twice that sum. Such an adjustment would ignore the findings about the contributions of the parties. It is not the purpose of the non-contribution elements of section 79(4) to even up the financial circumstances of the parties. I will provide for an adjustment of 7.5%. That represents about $214,000 and will create a difference between the parties of twice that sum.

Just and Equitable

The format of the orders is substantially agreed. The parties both seek that the wife retain the C property, the accounts and superannuation in her name and save for the mortgage secured over the M property, responsibility for the debts in her sole name. The husband is to retain the balance of the assets and debts, and will take on the obligation to refinance the mortgage currently in the wife’s name, secured over the M property. The parties then seek that the wife receive a cash adjustment. They contemplate that such an adjustment be met, in the first instance, from the MISA (a)ccount. The dispute comes down to the amount of that adjustment.
The net assets (including superannuation) have a value of $2,854,603 ($3,563,354 - $708,751). If the property of the parties is divided in the proportions 60% to the husband and 40% to the wife the net assets will be divided as to about $1,712,762 to the husband and $1,141,841 to the wife.
The agreed format would leave the wife with the following assets and liabilities:

Assets

Value

C property – Joint

$730,000

2001 Mitsubishi Challenger – Joint

$11,000

Credit Union account - Wife

$444

Household contents at C - wife

$5,000

Add back Legal fees paid by Wife to Etheringtons Solicitors - wife

$2,624

Add back Legal fees paid by wife to York Family Law as at 11/11/09 - wife

$47,770

L Super – wife

$37,485

Personal loan from Ms R – wife

-$5,000

HSBC Visa as at current date – wife

-$4,809

Citibank Visa as at current date – wife

-$4,900

Aussie Mastercard as at current date – wife

-$1,800

David Jones Card as at current date – wife

-$2,400

Ask Funding Limited (as at 12/11/2009) wife

-$54,153

Total

$761,261.00

In order to bring her to 40% the wife would receive a further $380,580. I will round that figure up to $380,600.
Taking account of that payment, the agreed format of orders would leave the husband with:

Assets

Value

E property – Joint

$845,000

M property – Joint

$650,000

Commonwealth Bank account (as at 19.07.09) – Joint

$12

CBA MISA account re: B property – Joint

$213,892

Elder Holdings Pty Limited (trustee company) – Joint

$0

Elder Family Trust – Joint

$32,500

Household contents at E – Joint

$5,000

Mortgage over M property – wife

-$339,031

B property – husband

$485,000

Credit Union account (Husband: as at date of hearing) – husband

$5,631

Loan from Husband to Elder Family Trust – husband

$145,330

Husband’s NIB shares – husband

$4,420

Husband’s 2009 income tax refund – husband

$2,495

1993 Toyota Hilux Ute – husband

$2,000

Add back Legal fees paid by Husband as at 22 June 2009 – husband

$56,740

S Fund – husband

$281,011

Mortgage over property at B – Husband

-$296,658

Payment to the wife

-$380,600

Total

$1,712,742.00

The husband sought orders in relation to particular items of personalty. No submissions were made about those things. There is no evidence about the value of those things. On that basis I will not depart from the framework of orders sought on behalf of the wife.
The orders I propose commit the husband to make a payment to the wife. The parties have earmarked the MISA (a)ccount as a source of payment. The required payment will call for about $166,708, after the balance of the MISA(a)ccount is paid to the wife. With the mortgage on the B property and the mortgage on the M property to refinance, the husband will be stretched. His counsel foreshadowed that if the required payment was much more than the balance of the MISA (a)ccount then it was likely that the M property would need to be sold. Therefore, in the event that he cannot make the total payment, the M property will be sold and the wife will receive the balance of the payment from the net proceeds of sale. The wife has sought payment within 30 days. That should be sufficient time for the husband to arrange finance, if he still wishes to do so.

Conclusion under Section 79

Significant contributions were made by each of the parties. They acquired assets and provided a secure home for two children. In the course of nearly 12 years of cohabitation and since, the parties shared the work of the family in different ways. The husband made the greater contributions and there needs to be an adjustment in favour of the wife. The orders I propose will effect a just and equitable settlement of their property.

I certify that the preceding one husband and ninety four (194) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 29 January 2010

Proceeds of sale N property	$50,000
Furniture	NK
Toyota RAV4	NK
Total Assets	$50,000 +

Car Lease	NK
GE Credit card debt	E$5,000
Total Liabilities	$5,000 +

Assets	Value
C property – Joint	$730,000
2001 Mitsubishi Challenger – Joint	$11,000
Credit Union account - Wife	$444
Household contents at C - wife	$5,000
Add back Legal fees paid by Wife to Etheringtons Solicitors - wife	$2,624
Add back Legal fees paid by wife to York Family Law as at 11/11/09 - wife	$47,770
L Super – wife	$37,485
Personal loan from Ms R – wife	-$5,000
HSBC Visa as at current date – wife	-$4,809
Citibank Visa as at current date – wife	-$4,900
Aussie Mastercard as at current date – wife	-$1,800
David Jones Card as at current date – wife	-$2,400
Ask Funding Limited (as at 12/11/2009) wife	-$54,153
Total	$761,261.00

Assets	Value
E property – Joint	$845,000
M property – Joint	$650,000
Commonwealth Bank account (as at 19.07.09) – Joint	$12
CBA MISA account re: B property – Joint	$213,892
Elder Holdings Pty Limited (trustee company) – Joint	$0
Elder Family Trust – Joint	$32,500
Household contents at E – Joint	$5,000
Mortgage over M property – wife	-$339,031
B property – husband	$485,000
Credit Union account (Husband: as at date of hearing) – husband	$5,631
Loan from Husband to Elder Family Trust – husband	$145,330
Husband’s NIB shares – husband	$4,420
Husband’s 2009 income tax refund – husband	$2,495
1993 Toyota Hilux Ute – husband	$2,000
Add back Legal fees paid by Husband as at 22 June 2009 – husband	$56,740
S Fund – husband	$281,011
Mortgage over property at B – Husband	-$296,658
Payment to the wife	-$380,600
Total	$1,712,742.00