Fayette and Fayette

[2007] FamCA 834

FAMILY COURT OF AUSTRALIA

FAYETTE & FAYETTE [2007] FamCA 834

FAMILY LAW - PROPERTY– superannuation – whether splitting order appropriate

Family Law Act 1975 (Cth) s.79, s.79(4)(a)-(g), s.75(2), s.4(1), Part VIIIB
Family Law (Superannuation) Regulations 2001
Child Support (Assessment) Act 1989 (Cth)

Omacini  v  Omacini (2005) FLC 93-218
Townsend  v  Townsend (1995) FLC 92-569
Coghlan  v  Coghlan (2005) FLC 93-220

M  v  M (2006) FLC 93-281
West  v  Green (1993) FLC 92-395
Harrison  v  Harrison (1996) FLC 92-682
Bartlett  v  Bartlett (1996) FLC 92-721
O  v  O (2000) Fam CA 1432

HUSBAND: Mr Fayette

WIFE: Ms Fayette

FILE NUMBER: MLF 80 of 2006

DATE DELIVERED: 20 August, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 23 May and 30 July, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Harper

SOLICITOR FOR THE HUSBAND: Robb & Associates

COUNSEL FOR THE WIFE: Ms Boyle

SOLICITOR FOR THE WIFE: Harris Lieberman

Orders

1. That within 14 days the husband and wife each execute all necessary documents and provide all necessary consents to procure a sale of the real property situate at and known as … Road, T, New South Wales (“the real property”) by way of private treaty, and subject to any agreement between the parties to the contrary, the following provisions shall apply :

   (a)the reserve price for the real property shall be as agreed between the parties or, in default of agreement, nominated by a valuer (who is also a licensed real estate agent) appointed by the President of the New South Wales Division of the Australian Property Institute;

   (b)the real property shall be offered for sale by a real estate agent agreed to by the parties and, in default of agreement, the real estate agent appointed as a valuer pursuant to the preceding sub-paragraph.

   (c)save with the written consent of the other party, a party shall not (either directly or through any agent or nominee) purchase the real property;

   (d)the husband shall have the conduct of the sale;

   (e)notwithstanding the provisions of sub-paragraph (d) hereof, both parties must agree to any pre-sale maintenance or other work on the real property unless the same is certified as being required by the real estate agent.

1. That pending the settlement of the sale :

   (a)the husband shall have the right to occupy the real property and during that period he pay all rates, taxes and other outgoings as they fall due (not including the rate arrears of $2,242 referred to in the reasons for judgment published this day); 

   (b)the parties hold their respective interests in the real property on trust pursuant to these orders;  and

   (c)neither party encumber the real property without the consent in writing of the other party. 

1. That upon completion of the sale the proceeds of the sale shall be applied as follows :

   (a)first, to pay all costs, commissions and expenses of the sale;

   (b)second, to pay rate arrears of $2,242;

   (c)third, subject to paragraph (4) hereof, to pay any council and water rates and maintenance levies then outstanding in respect of the real property;

   (d)fourth, to discharge mortgage registered number … to H Pty. Ltd.;

   (e)fifth, to pay to B School the sum of $630;

   (f)sixth, to pay to the wife a sum calculated as follows, where A is the balance of the proceeds of sale after payments due pursuant to sub-paragraphs (a) to (e) of this paragraph and B is the nett proceeds of sale of the Ford Utility referred to in paragraph (5) hereof :

A + B + $36,000 x 55% - $6,000

(g)seventh, subject to paragraph (4) hereof, the balance to the husband.

1. That any rates or levies adjusted against the parties as vendors on settlement of the sale of the real property which are in excess of rate arrears of $2,242 shall be the sole responsibility of the husband, and one-half of any sum so adjusted against the parties and paid pursuant to the provisions of paragraph (3)(c) hereof shall be deducted from the sum otherwise due to the husband pursuant to the provisions of paragraph (3)(g) hereof, and be paid to the wife. 

1. That within 14 days the husband and wife execute all necessary documents to procure a sale of the Ford Utility and the nett proceeds of sale, after payment of the costs and expenses of sale, be held in trust pursuant to these orders. 

1. That within 14 days the wife do all acts and sign all documents necessary to transfer to the husband the whole of her interest in the Ford Territory motor vehicle. 

1. That within 14 days the husband deliver to the wife the horse gear in the shed and the wife’s personal items referred to, respectively, in paragraphs 15(vi) and 15(viii) of the amended application filed by the wife on 2 May, 2007. 

1. That a base amount of $171,103 is allocated by the Court as required by s.90MT(4) of the Family Law Act 1975 to the wife (“the non member spouse”) out of the husband’s (“the member spouse”) interest in the P Superannuation Scheme (“the PSS scheme”).

1. That in accordance with s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the husband’s interest in the PSS scheme, the SAS Trustee Corporation as Trustee of the PSS scheme (“the PSS scheme trustee”) shall pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the “base amount” of $171,103 and that there be a corresponding deduction in the entitlement that the husband would have in the PSS scheme but for these orders.

1. That the husband shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the PSS scheme trustee can calculate the entitlement of, and make payment to, the wife in accordance with these orders.

1. That these orders have effect from the operative time and the operative time is four (4) days from the date of service of a sealed copy of these orders on the PSS scheme trustee. 

1. That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the PSS scheme to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

1. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders :

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders and any property remaining in the former matrimonial home which is not referred to in these orders be deemed to be the property of the husband; 

   (b)each party forego any claims he or she may have to any superannuation benefits belonging to or earned by the other;

   (c)insurance policies remain the sole property of the owner named in the policy;

   (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;  and

   (e)any joint tenancy of the parties in any real personal estate is expressly severed. 

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. The value of the transferable benefits from the husband’s interest to the wife’s interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994;

1. Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the PSS scheme made after the PSS scheme trustee has created a new interest in the wife’s name in the PSS scheme, as contemplated in paragraph (12) of these orders, are not splittable payments; and

1. The PSS scheme trustee will be relieved of its obligations to calculate and split payments under paragraph (9) of these orders in the event that the transferable benefits are transferred to a fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

IT IS NOTED IN CONNECTION WITH THESE ORDERS  that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Fayette and Fayette.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 80 of 2006

MR FAYETTE

Husband

And

MS FAYETTE

Wife

REASONS FOR JUDGMENT

1. Mr and Ms Fayette lived together between November 1991 and March 2006, marrying in March 1993.  They separated in March 2006.  They have three children; A is 10, S is 8 and B is 7.  Final parenting orders were made, by consent, on 16 May 2007 pursuant to which the children move regularly between their parents’ homes, spending five nights a fortnight with their father during the school terms, and half of all school holidays.  The Court is asked to determine their competing property applications.

LEGAL PRINCIPLES

1. I propose to adopt the now well established approach to the exercise of the discretion under s.79.  It is appropriate for the judge to identify the assets to be divided between the parties, identify the liabilities to be taken into consideration and then to determine the manner in which the assets ought to be divided having regard to contributions of all sorts.  Then, having considered (d) to (g) of s.79(4), the Court should determine what further adjustments (if any) should be made having regard to s.75(2) considerations, and consider whether the outcome is just and equitable.

1. The legislation and authorities referable to orders sought in respect of superannuation interests will be considered later.

EVIDENCE

1. Findings are made on the balance of probabilities having regard to the evidence and my observations of the witnesses.  In what follows, statements of fact constitute findings of fact.

1. Each of the parties relied upon an affidavit and financial statement sworn by him/her.  The husband also relied on affidavits sworn by his mother, Mrs Fayette, and an affidavit of an orthopaedic surgeon, Dr L.  The wife relied on an affidavit sworn by her partner, Mr D.  The parties and Mr D were cross-examined. 

1. In evidence were three single expert witness valuations; one (by Mr E) relating to real property, and the other two (by Ms K) relating to the husband’s superannuation interests.  Neither was cross-examined.

1. Cross-examination of the parties and Mr D was brief.  The tension between the parties was clear.  They have been separated for a little over a year and in that period each has experienced considerable change.  It was the wife who ended the marriage, taking the children from the family home and, within a few months, moving to live with Mr D who had, prior to the separation, been employed by the parties to do substantial landscaping work on their property.  Within a few more months, the wife was pregnant.  By the time final submissions were made on 30 July, 2007 (they being deferred to allow a further valuation of the husband’s superannuation interests), she had given birth to that child.

1. Early in February 2006 the husband developed a back problem, which worsened over the next months.  He was admitted to hospital on 21 April 2006, and had urgent surgery to remove a prolapsed disc the following day.  His back problem affected the work he could do, and the restricted hours and duties impacted on his salary.  He did form a new relationship later that year, with Ms S, but they do not live together. 

1. Although observed briefly, the impression the parties gave was that the wife has moved on to make a new life for herself with Mr D, whereas the husband is still working through his grief at the breakdown of the marriage and the loss of family life.  Their recollections are no doubt reconstructed through differing lenses but I am satisfied each did his/her best to tell the truth as now recalled.    

CHRONOLOGY

1. When the parties began living together in 1991 the husband had been employed by the New South Wales public service for a decade and the wife was working as a beautician.  Neither had any assets or savings of significance, save the husband’s superannuation.  Ms. K estimated (based on information supplied by SAS Trustee Corporation) that the gross valuation of his interest at 1 November, 1991 was $15,500.  SAS was unable to supply information which would enable the interest to be valued in accordance with the Family Law (Superannuation) Regulations 2001.

1. The wife’s stepfather conducted a business selling cars.  Until the parties moved to southern New South Wales in 2001 he provided them with cars for their use and paid the registration on those cars.

1. In 1994 the parties relocated briefly to the Sunshine Coast, the husband taking eight months’ leave from NSW public service to explore employment options.  At the end of that period, they moved back to Sydney and each took up his or her earlier employment.

1. In 1995 or 1996 they bought a unit in NB, with a deposit of about $30,000.  The wife’s mother and step-father made them an interest free loan of $10,000 to assist with this purchase; the loan was later repaid.  A was born on …November 1996. 

1. In 1998 the parties sold the NB property and applied the net proceeds towards the purchase of a house at N.  The husband’s mother gave them $17,500 at that time;  the balance of the purchase price was borrowed.  The husband’s mother’s evidence was that later that year she transferred $10,000 into a Commonwealth Bank account in A’s name, and those funds were applied to the mortgage.  In the course of the trial the Court was advised by counsel that the husband’s mother’s total contribution in 1998 was acknowledged at $22,500 and, on that basis, she was not required for cross-examination. 

1. S was born on … November 1998 and B on … February 2000.

1. In early 2001 the husband accepted a transfer and the family moved to A in southern New South Wales.  They rented their N house, and the rent covered the mortgage.  The two cars in their possession when they moved to A (provided by the wife’s stepfather) were sold, netting the parties approximately $3,500, which they retained.  Later in 2001 they bought a house in A2 for $185,000, using the equity in the N house to borrow the purchase price, plus an additional sum for renovations, much of which were undertaken by the husband and his brother-in-law. 

1. In 2003 the N property was sold for $600,000.  With the net proceeds of about $350,000 the parties purchased a three hectare block at W for $150,000 and then spent some $300,000 building a house on that land.  Shortly prior to moving into the new house in April 2004 they sold their A2 property for $285,000.  Once those proceeds were applied to their debt, their mortgage was reduced to less than $100,000.

1. In 2004 the parties increased the mortgage to about $180,000.  They purchased a Ford Territory vehicle for approximately $41,000 and installed an inground pool for about the same figure.  They contracted Mr D to perform significant landscaping work.  In November 2005 they borrowed a further $6,000 on their mortgage to pay for a holiday to Fiji.

1. The husband’s back injury manifested on 1 February 2006.  He had significant pain until the laminectomy on 22 April 2006.  He initially returned to work on restricted duties and an attempt to return to routine duties late in 2006 forced him back onto sick leave after about four weeks.

1. The wife dates the separation from 6 March 2006, the husband from 13 March 2006.

1. In the period prior to separation the parties had withdrawn funds from their mortgage account on a number of occasions to meet various financial obligations.  The sum of $2,000 was withdrawn on 7 November 2005, and again on 20 February 2006.  Those funds were paid into a joint account and used to pay joint liabilities.  Another sum of $2,000 was withdrawn on 15 March 2006; when cross-examined the wife agreed that she had known and agreed to that.

1. The evidence was of the husband making two further withdrawals from the mortgage account in April and June 2006, totalling $5,000.00.  It was the wife’s case that those sums, together with the $2,000.00 withdrawn on 15 March 2006, should be notionally added back to the pool.  The husband submitted they were used to meet matrimonial expenses and should not form part of the pool.

1. After separation the husband remained in the former matrimonial home.  In about February 2007 he made arrangements to change the home loan to an interest only loan, which reduced the mortgage repayments from $770 per fortnight to $1,081 per month.  When the parties separated the mortgage stood at $175,061.  By the time of the trial, $177,502 was outstanding.

1. The husband’s evidence was that he paid private health insurance for the family of $80.80 a month up until February 2007.  He is assessed to pay child support of $1,600 per month;  as at 13 April, 2007 he was $2,799 in arrears.

1. On 9 June 2006, without any notice to the wife, the husband removed the Territory motor vehicle which she had been driving since separation and left her the Ford Utility which he had been driving.  She had paid the registration on the Territory the previous day.  It was on that date that he withdrew a further $2,000 from the mortgage account. 

1. The husband offered to return the Territory to the wife if she paid $148 per week towards the mortgage.  At the time this proposal was made by the husband (through his lawyers), child support arrears of some $2,500 were outstanding.  She did not accept the offer.  The wife suggested they share the vehicle, it moving between them as the children moved, being available for both to transport the children.  He did not agree.  The husband subsequently asked the wife to contribute to the cost of repairs to the home in which he was living, including repairs to the pool pump and sewer pit pump, and to a kitchen tap.   He stopped paying rates on the property in August 2006.  There are rates arrears of $2,242 and rates for the current year have not yet been paid.

1. The relationship between the parties after separation was acrimonious, and their problems were exacerbated by the circumstances in which the wife attended at the former matrimonial home to remove items.  They struggled to sort out contact arrangements between the husband and the children and on 18 August 2006 the wife filed applications for property and parenting orders in the Local Court at A.  They were transferred to this Court a few days later.

1. After a dispute relating to the registration (or the registration sticker or the registration papers) the wife returned the Utility to the husband in April 2007.  At the time of trial its registration was due (about $500) and unpaid.  Also unpaid was $630 due to B School for fees when B attended that school.

ASSET POOL

1. The parties agreed that the former matrimonial home is to be sold.  On the figures available to the parties (value $675,000, mortgage $177,502) it should realise $497,498, less adjustments and selling costs. 

1. The parties agreed that the Territory will stay with the husband and a value of $25,000 be attributed to it.  When the case was opened, I understood that the Utility was to be sold.  However, the orders advanced by the husband in final submissions proposed that he transfer ownership of that vehicle to the wife. 

1. Given the apparent inconsistency, further submissions were sought from the parties.  They agreed on the value of the Ford Utility, being $4,250.  Both sought an order that it be sold and the proceeds divided in accordance with the percentage division determined by the Court.

1. In paragraph 15 of the amended application for final orders filed by her on 2 May, 2007 the wife sought an order that the husband make available for collection by her a number of items being a refrigerator, king single bed, barbeque, queen bed frame, kitchen Tupperware, horse gear in shed, two vases in the kitchen, bedside cabinets including the wife’s personal items and her jewellery.  When asked in cross-examination whether he was prepared to return any of the items, the husband said it would take “some negotiation” and that it would depend on “what happens with other matters”.  He said he would consider giving some of the items to the wife but could not say then what they would be.  He did say he was not aware of any jewellery. 

1. As there had been no further discussion about this aspect of the case by the time final submissions were made, counsel for the parties were asked to discuss the matter and advise the Court within seven days whether there was any agreement between the parties and, if so, the extent of it. 

1. On 6 August, 2007 the solicitors for each of the parties advised the Court that the parties agreed that the wife should retain the horse gear in the shed (referred to in paragraph 15(vi) of the wife’s amended application) and the personal items (referred to in paragraph 15(viii)).  The Court was advised that no agreement had been reached between the parties for the return of any other items specified in paragraph 15 of the wife’s amended application.

1. Each of the parties has furniture and chattels valued at $5,000 and the wife has jewellery at an agreed value of $1,000.  In the absence of any evidence to the contrary, the Court must assume that the items of property sought by the wife in respect of which there is no agreement for their return, must form part of the furniture and chattels in the husband’s possession. 

Notional add-back

1. The wife sought that $7,000 withdrawn from the mortgage by the husband after separation be notionally added back to the pool.  Cross-examined, she conceded she had agreed to a withdrawal by the husband of $2,000 on 15 March, 2006.

1. In Omacini  v  Omacini (2005) FLC 93-218 the Full Court (Holden, Warnick and Le Poer Trench JJ) considered the categories of cases in which it is appropriate to notionally add back assets which no longer exist to the pool. One is where there has been a premature distribution of matrimonial assets. The Full Court quoted with approval from Townsend  v  Townsend (1995) FLC 92-569, where Nicholson CJ. (with whom Fogarty and Jordan JJ agreed) observed, at 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 s.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.

2. In Omacini the Full Court observed (at 79,619) that the trial judge seemed to be saying that the mere fact a party has expended money realised from the disposition of assets that existed as at the date of the separation will result in the expenditure being added back “in the usual way” as a premature distribution of assets with nothing more, and if that were what the trial judge was saying, it was “unduly simplistic”. The Full Court held that it was necessary for the trial judge to examine and make some assessment of the reasonableness or otherwise of the expenditure.

1. The husband provided an explanation for the $5,000 drawn between April and June 2006, explaining that it was used to pay bills and to close a joint credit card account.  Whilst the wife did not concede that to be accurate, I am satisfied it was a reasonable explanation and in the context of a family history of drawing down funds from the mortgage account to pay bills in the past, I find it would not be appropriate to add this sum notionally back to the pool. 

Superannuation

1. The wife has superannuation totalling $3,071, in two funds.

1. The husband was a member of the P Superannuation Scheme for a decade prior to the parties commencing cohabitation, contributing throughout that period.  The evidence of Ms K was that his interest when the parties began living together would have had an estimated value of $15,500 although that is not the result of application of the Regulations.  He made contributions throughout the marriage, and after separation, and continues to do so.  Ms K valued his interest at 13 March 2006 at $377,406.90  and at 27 April 2007 at $407,030.

1. The husband is also a member of State Authorities Non-Contributory Superannuation Scheme.  His interest in that scheme was valued at 13 March, 2006 at $23,055.66 and at 27 April, 2007 at $25,333.13.  His combined superannuation interests at 13 March, 2006 were valued at $400,462.56 and at $432,363.57 at 27 April, 2007.  Both interests are in the growth phase and are for defined benefits.

1. In Coghlan  v  Coghlan (2005) FLC 93-220 the majority of the Full Court (Bryant CJ, Coleman and Finn JJ, Warnick and O’Ryan JJ dissenting on this point) held that there is no mandate in Part VIIIB of the Family Law Act 1975 to include the value of the superannuation interests of the parties in the pool of assets to be divided in proceedings under s.79. The majority held that the preferred approach is to prepare a list of any superannuation interests separate to any items of property, finding that superannuation interests are another species of assets and different from property as defined in s.4(1). At 79,646 the majority said :

   63.However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise).

   . . .

   64.Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed.  The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered.  Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered.  Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered.  The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered. 

   65.In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case.  If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to :

   (a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);

   (b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;

   (c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g);  and

   (d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.

   66.In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant:  the relationship between years of fund membership and cohabitation;  actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing;  preserved and non-preserved resignation entitlements at those times;  and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.

   67.If this approach is adopted, whereby superannuation interests are dealt with separately from property as defined in s 4(1), but are subject to the considerations in s 79(4), then not only will any contributions, both direct and indirect, by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account, both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.

1. In final submissions both counsel presented a case based on two pools.  Counsel for the wife submitted that all the superannuation interests of the parties should form one pool and all non-superannuation assets a second pool.  Counsel for the husband based her submissions on one pool which included only the husband’s superannuation interests, and a second pool made up of all non-superannuation assets plus the wife’s relatively modest superannuation interests.  She adopted that course having regard to the size of the wife’s superannuation interests and the fact that no order (whether a splitting order or otherwise) was sought in respect of the wife’s interest. 

1. I am satisfied that the two pool approach is appropriate and that all superannuation interests should form one of those pools. 

LIABILITIES

1. Save for the mortgage, the rate arrears and the sum due to B School, there are no matrimonial liabilities. 

Non-Superannuation assets

W property  675,000

less mortgage  177,502  497,498

Ford Territory (H)   25,000

Ford Utility   4,250

Household chattels (H)   5,000

Household chattels (W)   5,000

Jewellery (W)      1,000

Total  537,748

less liabilities

Rate arrears   2,242

B School        630      2,872

Net assets  534,876

Superannuation interests

P Superannuation Scheme (H)  407,030

SAS Scheme (H)   25,333

MLC (W)   2,899

Australian Super (W)         172

435,434

CONTRIBUTIONS

1. In relation to non-superannuation assets the wife submitted that contributions should be assessed as equal.  She argued that the contribution made by the husband’s mother of $22,500 in 1998 should not weight the scales in the husband’s favour, having regard to contributions made by the wife’s family, being the interest-free loan which enabled them to purchase the unit at NB (and which constituted one quarter of the funds they put into that property), the provision of cars to them over almost a decade, and the retention of the sale proceeds from the last of those cars when they moved to A. 

1. The wife submitted that contributions to the pool of superannuation interests should be assessed as 55% by the husband and 45% by her, computed by reference to the valuation of the interests at trial.  On her behalf it was submitted that it was difficult to see any real connection between the value of the husband’s superannuation at the commencement of cohabitation, which could not be valued in accordance with the Regulations, and the current value of his interests, and that the length of the parties’ relationship, and their respective contributions of all kinds, meant only a small adjustment in the husband’s favour was warranted.  On this analysis there would not be a significant adjustment for the husband’s ten years of membership prior to cohabitation or his post separation contributions. 

1. The husband submitted there should be an adjustment of 5% in his favour in respect of non-superannuation assets, taking into account his higher financial contributions, the contributions made by his mother, the mortgage payments made by him since separation and his maintenance of the family home in that period, notwithstanding the rate arrears.  In respect of superannuation interests, he submitted that while contributions made during the fifteen years of cohabitation should be assessed as equal, the relevant part of his interest was that which related to the parties’ period of cohabitation.  When they separated he had been in the fund for 25 years, they were together for fifteen of those years, and thus each argued contributed equally to 15/25 of the interest at separation, represented by $240,277.  On that analysis, the wife’s interest in the fund was $120,138, which he sought to discount by a third for paying it to her now. 

1. The adjustment sought by the husband in respect of non-superannuation assets would result in a 10% differential, representing $53,487 of the relevant pool.  In my judgment that overvalues the contribution made by his mother.

1. The contribution made on behalf of the wife by her step-father’s provision of motor cars should not be underestimated.  The dispute between the parties as to who was to use which vehicle after separation and the emphasis placed on the costs of registration, corroborate the importance to families of access to cars.  The undisputed evidence of the wife was that her step-father gifted the parties a car after they commenced cohabitation, which was in 1991, and until they moved to A in 2001, he not only provided them with cars, but paid the registration on them.  When they moved to A they were able to sell the cars they were then driving, netting some $3,500 in total.  That is a significant contribution.

1. The husband tended to discount entirely the provision of the interest-free loan which enabled the parties to buy the unit at NB.  While that loan was repaid, and is clearly in a very different category to a gift, it did provide a springboard for the parties’ acquisition of future property.  That the funds given by the husband’s mother to them did that, too, is not in dispute. 

1. While the husband placed considerable reliance on his contributions to the maintenance of the former matrimonial home after separation, the reality is that the mortgage increased in that period and substantial rate arrears accrued.  He has had the benefit of living in that property.  I have not acceded to the submission I should add back to the pool sums withdrawn on the mortgage after separation, and have included the unpaid rate arrears as a joint liability, not one for which he is solely responsible. 

1. Having regard to all contributions made by and on behalf of a party to the non-superannuation pool, I am not persuaded by the husband that anything other than a finding of equal contribution is warranted.

1. The situation in relation to superannuation interests is very different.  I am satisfied an adjustment must be made for the ten years of superannuation membership prior to the commencement of cohabitation.  In a scheme which assesses benefits based not simply on contributions but by reference to years of membership, the ten year “start” has contributed more than its notional $15,500 value.  The effect of the passage of time on his entitlement is demonstrated by the difference between the valuations of the husband’s interests at separation and at trial;  in that thirteen month period the value increased by $31,910.

1. The husband argued that his sole contributions to superannuation in the period between separation and trial meant any increase in the value of his superannuation after separation should be disregarded and the relevant value of his interest was that at separation, not trial.  I do not accept that analysis.  During the period after separation the wife made a significantly greater contribution in terms of parenting and that should not be ignored.  Further, there must be a flow on effect from her indirect contributions to the superannuation to the time of separation, the value of the fund then forming the base the husband has built on since.  Nevertheless, I am satisfied some adjustment in his favour needs to be made. 

1. Relying on M v M (2006) FLC 93-281, counsel for the husband advanced as a “rough starting point” a figure of 15/25^ths of the husband’s current entitlement as being that to which the wife should be found to have equally contributed.  She based this on the husband being a member of the scheme for 25 years, and the wife contributing indirectly to his superannuation during their fifteen years of cohabitation.  While the wife sought a finding that she contributed 45% to the whole of the husband’s current superannuation entitlement, she took specific issue with this formulation, submitting that if there were to be such a “rough starting point”, the period between cohabitation and the date of trial should be relevant, not that between the date of cohabitation and the date of separation. 

1. In M  v  M the Full Court (Bryant CJ., Finn and Boland JJ.) found that since the introduction of Part VIIIB of the Family Law Act 1975, there was no longer any need to make orders of the kind which were made in West  v  Green (1993) FLC 92-395, nor to use the so-called formula to arrive at a value for superannuation entitlements.

1. The Full Court observed (at 80-815) that the formula in West  v  Green came into being, not as a means of assessing contributions to the date of hearing, but to allow for an order to take effect in the future, upon the husband’s entitlement vesting.  In the opinion of the Full Court, the ratio of West  v  Green was of narrow compass and may have been accorded an interpretation it did not warrant.  In support of that opinion, the Full Court referred to a number of cases decided prior to the introduction of Part VIII B into the Act, including Harrison  v  Harrison (1996) FLC 92-682, Bartlett  v  Bartlett (1996) FLC 92-721 and O  v  O (2000) Fam CA 1432. 

1. The Full Court then expressed the view (at 80,816) that there should be no doubt since the introduction of Part VIIIB that there is no longer any need to make orders of the kind made in West  v  Green, or to use the so-called formula to arrive at a value for superannuation entitlements, because the amendments effected by Part VIIIB enable the Court to make splitting orders and the Regulations provide a method of valuation.  The Full Court was critical of the survival, to some degree, of the West  v  Green approach to the assessment of contributions and, at 80,817, observed :

   121.We do not find a contribution assessment based on a calculation of years of marriage divided by the years the member had been in the fund to be helpful.  In the context of considering contributions pursuant to s.79 it has never been necessary to apply a mathematical formula in the way we have described.  All that is required is that the contributions of the parties be evaluated in relation to superannuation as they are to other assets.  Further there may be real injustice in doing so as there is frequently far less contributed to a fund in the early years of membership compared to later years.  A formulaic approach does not take account of the years in which greater contributions were made, often later in a marriage, nor the effect of contributions over many years of marriage which may have diluted initial contribution.  (Pierce  and Pierce (1999) FLC 92-844).

   122.In our view this was the approach that the majority (Bryant CJ, Finn & Coleman JJ) in Coghlan (supra) was proposing when they set out in paragraphs 65 and 66 (at page 79,646):

   ‘In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case.  If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to :

   (a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);

   (b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;

   (c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g);  and

   (d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.

   In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant:  the relationship between years of fund membership and cohabitation;  actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing;  preserved and non-preserved resignation entitlements at those times;  and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.’

   123.In our view it is clear from those comments that the majority in Coghlan (supra) was concerned with a consideration of actual contributions where they were ascertainable.  The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration.  However, in our view there is nothing said by the majority in Coghlan (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4).  This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool.

1. Having regard to those findings, it is puzzling to find the Full Court, when re-exercising the discretion, using as its “rough starting point” a finding of an equal contribution to 13/20 of the husband’s superannuation entitlements, being a fraction reflecting years of cohabitation over years of membership.  No doubt the Full Court had good reasons for acting on the parties’ preference for it to exercise the discretion on the basis of the material available at trial, however inadequate, rather than send the question back for determination after receipt of additional evidence.  Nevertheless, it is perhaps not surprising that counsel for  the husband asked this Court to adopt the approach taken by the Full Court in M & M when considering a rough starting point.

1. For the wife it was contended that a formulaic approach was not appropriate;  an assessment should be made of the parties’ respective contributions to the superannuation interests and, in due course, a splitting order made, after consideration of adjustments for s. 75(2) factors. 

1. Taking all contributions to date into account and giving weight to the asset brought to the marriage by the husband, as well as their equal contributions while living together and their respective contributions since, I find that contribution to the husband’s superannuation interests should be assessed as being made 62.5% by the husband and 37.5% by the wife.

1. The total value of the wife’s superannuation is $3,071.  In the absence of any evidence to the contrary, I act on the basis it accrued during the marriage and each should be taken to have contributed equally to it.  It represents less than .7 of one per cent of the total superannuation pool. 

SECTION 79(4)(d) to (g)

1. I turn to the relevant matters referred to in s.79(4)(d) to (g).

   s.79(4)(d)the effect of any proposed order upon the earning capacity of either party to the marriage;

2. There is no evidence that the property orders sought will impact upon the earning capacity of either party.

   s.79(4)(e)the matters referred to in sub-section 75(2) so far as they are relevant;

I will consider each of the relevant paragraphs :

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

1. The wife is 38.  She has recently given birth.  There was no evidence her health is other than good.

1. The husband is 45 and carries the back injury to which I have earlier referred.   Overall, the husband was more optimistic about his capacity to return to his former … duties than was Dr L but it is to Dr. L’s evidence that weight should be given.

1. Dr L was asked his opinion as to whether the husband was incapacitated for his pre-injury duties and if so, to what extent.  In respect of that question he reported as follows:

   Following surgery for any disc prolapse, and indeed, following any disc prolapse, there is invariably a point of weakness at the affected disc, leading to chronic back pain of variable degree.

   Although he has experienced a good measure of improvement in his back condition with the Pilates programme, the underlying weakness in the L4/5 disc will remain a problem for the foreseeable future.  It is my view that, despite his improvement to date, he will remain unfit for return to pre-injury duties in the long term, because he will find that his back remains weak and vulnerable. 

   He will experience increased back pain with recurrent flares for the foreseeable future.

   Although this course is not invariable, it is so frequent as to be regarded as the normal outcome. 

   On his own admission, he says that he could now undertake normal hours of work, and he could return to full […] duties because he says that his overall current condition now is better than it was before he returned to the previous operational duties in October 2006. 

   Despite his own assessment, I find it hard to ignore that he has had a very large L4/5 disc prolapse, the effect of which is to destabilise the affected disc and result in ongoing back weakness and pain.

1. Dr Leitl was also asked to make an assessment of the husband’s permanent impairment which he did in accordance with AMA5 Table 15-3 and the NSW Workcover Guides.  In his opinion the husband is appropriately assessed as Lumbar Category III: 10% Whole Person Impairment combined with 3% Whole Person Impairment for the effect of persisting radiculopathy after surgery which equates to 13% Whole Person Impairment.

1. The wife tendered a Return to Work Plan for the husband, dated 2 May 2007.  The plan was based on the medical advice of Mr H, who is the husband’s treating surgeon.  It noted that it (the plan) was to be reviewed on or before 30 June 2007.  The plan provided for eight hour shifts, five days per week, from Monday to Friday, involving administrative duties working in the area of ….  Also in evidence was Mr H’s most recent Workcover certificate, dated 24 April 2007, noting the husband’s capacity for the then current controlled (…) administrative duties.

1. This is not a case where a party errs on the side of exaggerating a health problem.  The husband tried to return to work in 2006, and failed.  He is keen to try again; he hopes Dr. L’s opinion is pessimistic.  His own optimism may bode well for his adaptation to the long-term effects of his back injury but it does not qualify Dr. L’s prognosis.

   (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;

1. The wife’s taxable income to 30 June 2006 was $5,412.00.  Her evidence was of working as a beautician until August 2006.  On occasions in the past she has worked from home and fitted in paid work commitments around commitments to the children and family and said she “may do that again” after the birth of the baby.  She has the capacity to do so but she will also have the new baby to care for and may not be in a position to undertake paid work for some time;  she has the care of four children for much of the time.  It is unlikely her earning capacity will match that of the husband’s reduced (by virtue of his back injury) earning capacity.

1. In her financial statement the wife deposed to receiving a family tax benefit of $174 per week.  She has a child support entitlement of some $347 per week and arrears are being paid by instalments.

1. In his financial statement the husband deposed to a salary of $1,380 per week from which tax of $351 and superannuation of $83 are taken.  He tendered his most recent pay slip, to 3 May 2007.  It noted gross earnings for that fortnight of $2,777.68, of which $2,461.85 was base pay and the balance was loadings, deductions of tax ($702), superannuation ($166.66), Child Support Agency ($806.07) and P Union ($31.88) totalling $1,706.61.  The sum of $1,068.07 was transferred to his account, together with $3 paid into another account.  His year to date pay was noted to be $61,664.08. 

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

1. Both of the parents have significant child care commitments.  Pursuant to the orders made on 17 May 2007, the children live with the husband (during school terms) from the conclusion of school on Friday until the commencement of school on Tuesday in each second week, and from the conclusion of school on Monday until the commencement of school on Tuesday in the alternate week.   They thus spend five nights a fortnight with him and the balance of time with the wife.  Their school holidays are split between their parents. 

   (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;

2. Each of the parties has the usual obligations to support him and herself, and, pursuant to s.72, the other to the extent that one is unable to do so and the other has that capacity.  The wife did not seek spousal maintenance.  Both are responsible for their children, who are still young.  The wife has responsibility (with Mr. D) for their child.

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

1. There was no evidence that either party has a responsibility to support anyone other than him or herself and his or her children.

(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;

1. I have earlier referred to the parties’ superannuation entitlements and the wife’s Centrelink payments.  The husband sought to pay the wife now a sum referable to her entitlement in his superannuation interests, arguing that a “clean break” was in their interests and that he may not access his superannuation for decades.  On his behalf it was submitted that age 57 was the earliest he could access his defined benefits.  That is indirectly confirmed by exhibit E to the affidavit of Ms. K sworn 16 May, 2007 which notes a member’s entitlement to draw part of his/her entitlements in a lump sum if he/she leave the current employment, and refers to the imposition of a tax penalty if the member is still then under 57.

1. On the wife’s behalf it was submitted a splitting order was appropriate and consistent with the legislative aims and the approach endorsed by the Full Court.

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

1. It is not unusual when parties separate for their standard of living to fall.  What is important is that the drop not be borne disproportionately by one party, or by the children.

(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;

1. There was no evidence either party proposed undertaking any further education or formal training, or to establish a business.

(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;

1. While there was some disagreement between the parties as to the extent of the husband’s involvement in the children’s lives when the parties were together, the brunt of the homemaking role fell to the wife, and her acceptance of that role enabled the husband to prosper in the New South Wales public service.  That job was no sinecure.  He sometimes worked long hours and no doubt experienced considerable work-related pressure and stress.  His capacity to do so was part of (and the result of) the parties’ agreed “partnership”.  He also played a role as a parent and homemaker.  While the wife maintained some work as a beautician, the business conducted by her was home based and not substantial;  it was not analogous with the career available to the husband and her current superannuation interest demonstrates one aspect of that reality.

(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;

1. The wife has maintained her skills as a beautician.  She agreed that she retains the capacity to work in that field but it is unlikely she will ever be able to earn more than a modest income from that source.

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

1. The wife has not been in paid work since August 2006.  She may undertake paid work in the future, as she did during the parties’ marriage, doing something less than fulltime work and thus having more time to be involved with the children.

1. The husband, too, will be involved with the children.  Working shifts in the past, while no doubt inconvenient and disruptive, also meant that he had time to be with the children during what are commonly called “business hours”.  He is presently not rostered on weekends.  He is keen to ensure he has a meaningful relationship with his children, as reflected in the parenting orders.

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

1. The wife is living with Mr D, who is 36.  He has a daughter from an earlier marriage, who is 11.  He sees her regularly and pays $80 per week child support for her.  He runs a landscaping business; his evidence was that its operating profit to 30 June 2006 was $25,200.  He agreed that the business pays his phone and car expenses.  In her financial statement the wife deposed to Mr D earning $550 per week and to him paying expenses for her benefit of $250 per week, characterised as being for a motor vehicle.  The wife and Mr D pay $230 per week rent for the home they share.

1. The husband submitted that the Court should find it probable that Mr. D’s real income exceeded his taxable income, having regard to the sum he earned when he worked for the parties and his admission that was not his sole income during that period.  It is probable the taxable income underestimates the financial benefits available to Mr. D but the evidence does not support a finding he has anything other than a modest income. 

1. The husband is in a relationship with Ms S but is not living with her.  She is a teacher. 

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

1. The husband is assessed to pay $1,600 per month and his most recent pay slip suggests that this is now paid direct from his employer.  As at 13 April 2007, arrears stood at $2,799.  In final submissions his counsel observed that the Agency had not taken mortgage payments into account when assessing his child support, which is not unusual, given he was living in the home.

   s.79(4)(f)any other order made under this Act affecting a party to the marriage or a child of the marriage;

2. Save for the parenting orders made by consent on 17 May 2007, there are no other orders which affect the parties or children.

1. The wife sought a distribution of the non-superannuation assets as to 65% to her and 35% to the husband, an adjustment of 15% in her favour above the contributions she submitted should be found.  In respect of superannuation assets, she sought that there be an adjustment so each party retained equal superannuation entitlements;  this would involve an adjustment of 5% in her favour, over the contribution as submitted by her.  To that end, in her amended application filed 2 May 2007, she sought that the parties execute the necessary documents and provide necessary consents to direct the Trustee of the P Superannuation Scheme to transfer to a superannuation fund nominated by her an amount “so that the superannuation entitlements of the husband and wife are equal”.

1. I sought a minute of more specific proposed orders from each counsel and they are annexed to this judgment.  The wife sought a splitting order, with the allocation of a base amount of $214,646 in the P Superannuation Scheme.  Procedural fairness was accorded to the trustee of that fund. 

1. The wife submitted these adjustments were warranted having regard to her more significant parenting obligations, and the disparity in the parties’ earning capacities, notwithstanding the husband’s back problems.  She has the care of four children for nine days a fortnight and the care of a baby for the balance of the fortnight.  She has been out of the workforce for some time.  Her more recent paid work was home based, with little capacity for any real career advancement or development.  Her new partner runs his own business and while I have found that it is probable he has access to more funds than his taxable income suggests, I could not find his current income to be presently equivalent to that of the husband.  On the other hand, Mr. D’s earning capacity is not constrained, as is that of the husband, by physical injury.

1. The husband submitted that there should be no adjustments for s.75(2) factors.  In his submission the non-superannuation assets should be divided 45% to the wife and 55% to him, consistent with his submission as to their respective contributions.  In relation to superannuation assets, he sought an adjustment in the wife’s favour in respect of that part of the superannuation which accrued during the course of their relationship and that this be done by a cash adjustment to the wife now, discounted by 33.3%.  He did not seek any form of superannuation split.

1. No evidence was adduced to provide the foundation for the husband’s submission that a one-third discount would be appropriate.  It was suggested by counsel for the husband that the husband may not retire until he is 70, but it was conceded he could retire at 57.  He was not asked his intentions during the trial.  In final submissions counsel made clear their common ground that were the husband to be invalided out of the public service, as a result of his back injury worsening, he would receive a pension until such time as his superannuation vested.  Possibly because that is so speculative, and because the husband is keen to remain in his present employment, neither counsel considered the question of whether such a pension could or would constitute a superannuation payment.  In those circumstances I do not find it necessary to consider that point.

1. I took the husband’s argument (for no adjustment for s.75(2) factors) to be that both parties have significant parenting obligations;  his earning capacity is uncertain but is unlikely to revert to pre-injury level in terms of the work he can undertake;  the wife has the support of Mr. D, the father of her youngest child;  and she will be receiving child support.  Each of the statements is accurate but they must be balanced against the wife’s lesser earning capacity and greater parenting role. 

1. Balancing all the factors to which I have referred, I find it appropriate to make an adjustment in the wife’s favour of 5% of the non-superannuation pool and 2.5% of the pool of superannuation interests. 

1. The obligation of the Court is to make orders which are just and equitable.  Orders which gave effect to those findings would result in the making of a splitting order, with a base amount of $171,103.

1. That figure is reached by calculating 40% of the parties’ total superannuation interests and deducting those interests which relate to superannuation in the wife’s name, which she will retain.  Forty percent of $435,434 is $174,174;  as she will retain superannuation interests totalling $3,071, the balance is $171,103.  In due course, the wife would receive benefits resulting from the splitting order; the balance of the husband’s superannuation entitlements would be received by him.

1. Given the pending sale of the former matrimonial home and the Ford Utility, orders will have to provide a formula to give effect to the Court’s findings.  However, working on the figures in the pool (and mindful that they do not take account of adjustments and selling costs) the wife would receive assets totalling $294,182 and the husband assets totalling $240,694.

1. The wife has chattels ($5,000) and jewellery ($1,000); she would receive $288,182 from the proceeds of sale of the property.  The husband would have chattels ($5,000) and the Ford Territory ($25,000);  he would receive $210,694.

1. Having regard to the length of the marriage, and their present parental and financial obligations, I am satisfied such a division would be just and equitable. 

Assets sought by the wife

1. It is unfortunate that the parties were not able to resolve the distribution of their personal belongings.  The parties have now been separated for some 16 months.  The Court cannot conjure evidence from thin air.  In the absence of evidence that the items which remain in dispute do not form part of the chattels in the husband’s possession included in the asset pool, I can find no basis on which to make orders that the balance of the items be returned to the wife. 

1. I do note that the minute of orders proposed by the husband provided for an adjustment (relating to the percentage distribution of the nett proceeds of the sale of the former matrimonial home) to reflect the difference in the car retained by the husband and “the horses and saddlery retained by the wife”.  The agreement of which I have been advised related to “horse gear”, not horses and saddlery.  I cannot value the saddlery.  If it were included in the chattels valued at $5,000 in the husband’s possession, it can only constitute a very small part of that sum.

I certify  that the preceding
105 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the            day of             2007.

…………………………………………
Associate.