Field and Field

[2008] FamCA 716

FAMILY COURT OF AUSTRALIA

FIELD & FIELD [2008] FamCA 716

FAMILY LAW – PROPERTY - Settlement in relation to marriage

Family Law Act 1975 (Cth)

Chorn & Hopkins [2004] FamCA 633; (2004) FLC ¶93-204
Coghlan & Coghlan [2005] FamCA 429; (2005) FLC ¶93-220

APPLICANT: Mr Field

RESPONDENT: Ms Field

FILE NUMBER: PAF 1458 of 2006

DATE DELIVERED: 1 May 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 28 - 29 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bell

SOLICITOR FOR THE APPLICANT: Mr Dunkley, McPhee Kelshaw

COUNSEL FOR THE RESPONDENT: Ms Mundey

SOLICITOR FOR THE RESPONDENT: Mr Banfield, Brenton Banfield

Orders

1. Within six (6) months of the date hereof, the wife pay to the husband the sum of $76,559.

2. In the event that the wife fails to fully comply with order 1 herein within the stipulated time of six months then the wife is to do all acts and things and execute all documents to cause the property situated at and known as E property to be sold at a price agreed to by the husband and through an agent agreed to by the husband and cause the proceeds of sale to be paid as follows:-

   (a)To pay agents’ commission and advertising expenses and legal expenses of the sale;

   (b)To pay any outstanding rates, taxes and charges levied in respect of the property;

   (c)       To pay the remainder as to 26.5% to the husband and 73.5% to the wife.

3. The parties are to cause the contents of the E property to be divided equally between them unless they reach an agreement to the contrary within twenty-eight (28) days of the date of these orders. To effect that division the wife is to provide a list being a complete inventory of all of the contents of the property to the husband within 35 days from the date hereof. Upon receipt of the inventory if the husband contests that it is not a complete inventory he is to forthwith notify the wife’s solicitor and provide in that notification  a list of the items which the husband says have been omitted. Within seven (7) days of receipt of such notification by the husband the wife is to reply either admitting or denying the assertions of the husband about omissions from the inventory. In the event of there still being a dispute between the parties the matter may be re-listed before me for determination of the dispute. If the parties are in agreement about the inventory then the husband is to within fourteen (14) days of receiving a satisfactory inventory provide to the wife two lists, one marked with the letter “A” and the other with the letter “B”.  The wife is to then choose within seven (7) days of receipt of the two lists which list she will retain as her property. Thereafter the property in the remaining list is to be the husband’s and he is to remove the items from the property by engaging a third party to collect the items on his behalf. The items are to be removed within twenty-eight (28) days of the wife notifying her election to the husband. The husband to give the wife three days notice in writing of the day and time his agent will be collecting the items.

4. Within twenty-eight (28) days of the date hereof, the wife do all acts and things and execute all documents necessary to transfer to the husband all of her right, title and interest in the property situated at and known as F property being the land in Certificate of Title Folio Identifier No. …/….

5. Within twenty-eight (28) days of the date hereof, the parties do all acts and things and execute all documents necessary to transfer to the husband the registration and the parties’ interest in the Toyota Townace Van.

6. The wife is to forthwith do all acts and things and execute all documents necessary to transfer to the husband all her shares in Telstra. The wife to provide to the husband any share script for the shares which is in her possession.

7. The husband and wife each otherwise be declared to have the sole right, title and interest in:

   (a)Any chattels, goods, furnishing and other property which are, at the date hereof, in their possession respectively;

   (b)Any shares, debentures and superannuation which, at the date hereof, stand in their sole name respectively.

8. I grant leave to each of the parties to apply to seek further orders implementing the Orders made herein.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1458 of 2006

MR FIELD

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr Field, and the respondent wife, Ms Field, were married on 5 October 1991.  They had lived together since about mid-1989. 

2. The husband seeks orders in accordance with his amended application filed on 10 November 2006, with the exception of order 5 as set out in that document.

3. The wife seeks orders as set out in exhibit W1, which was a minute of orders tendered during the course of the trial.

4. The husband was born on 29 October 1939 and the wife was born on 8 November 1938.  There were no children of the marriage.  Each had been previously married.  The parties separated in either August or October 2005.  The husband left the former matrimonial home on 21 February 2006.

5. During cohabitation, each of the parties worked.  At the commencement of cohabitation the husband was employed as a market manager and the wife as a bookkeeper.  I will refer to their income contributions later in these reasons.

6. At the commencement of cohabitation, the parties had the following assets and liabilities:  on the wife's side, firstly, the property at E.  Because of reasons stated later, I am unable to attribute a value to that property at the date of the cohabitation; secondly, superannuation worth $9,454; thirdly, a car of value not known.  She had liabilities being a mortgage on the E property of $27,000.

7. The husband claimed that the wife had a garage loan.  The husband asserted the wife owed $7,500 on a loan from the CBA for a garage.  He said the loan was originally for about $9,000 and he agreed the loan was taken out in 1983.  He said the garage was not finished until 1986 or 1987.  He estimated the amount owing at the date of cohabitation at about $7,500.

8. The wife's evidence was that the loan was taken out in about 1983 but was discharged within a period of four years and had been discharged prior to the commencement of cohabitation. 

9. In the circumstances of this case, having regard to the way in which the parties gave their evidence and the evidence given, I accept the wife's version in relation to that debt and I find that there was no debt in relation to the garage.

10. The next liability alleged by the husband was the wife's credit card.  The wife agrees that at the date of cohabitation she had a credit card; however, she has no details of whether it was in debt or otherwise.  She remembers that it had a limit of about $2,000.

11. In the circumstances of this case, I am not prepared to conclude that she did have a liability and, therefore, do not include that as a liability at the commencement of cohabitation.

12. The husband also alleged that the wife had a debt for a car.  As the value of the wife's car is not known and not included as a quantified asset at the commencement of cohabitation, it is not, in my view, appropriate or fair to include a liability on the wife’s side of the ledger.

13. On the husband's side, he had money owed to him by Mr L in the sum of $9,000.  He also had a car.  The car was said by the husband to have been sold shortly after cohabitation for which he received $6,000.  I accept the evidence given by the husband in relation to that sale, notwithstanding his agreement that at an earlier time he had advertised the car for considerably less than $6,000.  I therefore include in the balance sheet the value of the husband's car which was not less than $6,000.  The husband asserted he had savings of $2,000 at the date of cohabitation and I accept his assertion in that regard.

14. It was alleged by the wife that the husband had a tax liability in the sum of $2,819.  I should add at this stage that the figures I am referring to now in respect to the assets and liabilities at cohabitation were contained in exhibit X3, which was a handwritten document being a compilation of assets and liabilities of the parties collaboratively prepared for the purposes of this hearing.

15. The husband gave evidence about his tax debt.  He said that it arose because of an error by either his employer or an accountant and related to a car allowance.  He said he negotiated with the Australian Tax Office which agreed to accept $1,500 in total payment to be paid by instalments.  He agreed that annexure C to the wife's affidavit which suggests that the amount owing was, in fact, $2,819; however, he said that is not what he paid.  He said he was told that if he defaulted on the agreed payments then the larger amount would be pursued by the Australian Tax Office.  I accept the husband's evidence in relation to this matter and I find that his liability was for $1,500.

16. It was alleged by the wife that at the date of cohabitation, the husband had a liability of $5,041 to the Child Support Agency and, once again, she produced documents which verified such a debt.

17. The husband claimed his liability to the Child Support Agency was, in fact, $800 at about the date of cohabitation.  He agreed that annexure D of the wife's affidavit disclosed a debt of $5,041 owing but says that was wrong.  He said he had been making payments directly to his former wife.  He obtained a letter from her acknowledging those payments.  He said he was up to date with child support payments at the relevant date but asserted that $800 was paid, notwithstanding that he didn't agree with this amount, and he acknowledges that, for the purpose of this exercise, $800 should be treated as his arrears. I accept the husband’s evidence on this point.

18. The husband had a debt on his motor vehicle of $2,000.

19. In relation to the value of the property at E, a retrospective valuation was carried out by Ms A, a valuer, who also gave oral evidence in the case before me.  Her valuation was marked as exhibit X4.  In her oral evidence, she said she did not ask the wife for any details of improvements that had been carried out to the property between August 1989 (the date of the retrospective valuation) and current date.

20. She has clearly valued the property on the basis that it presented in substantially the same way in August 1989 as it did at the date of valuation in current time.  She agreed that if there was a substantial difference in the presentation of the property, it would affect its value as determined by her.  The work done on the property is set out in the husband's affidavit, which I accept as true on this matter.  The description of the work leads me to the conclusion that the property may well have had a substantially different external appearance so far as the gardens and surrounds are concerned.  I accept that apart from the 23-square metre outdoor covered recreation area, there was no structural difference in the property as at August 1989.

21. I cannot accept that had the valuer been appraised of the changes in the appearance of the property it would have had no impact on her valuation.  In any event, not being properly briefed with the true facts robbed her of the opportunity to do her work properly.  The expert was appointed jointly.  The husband had the opportunity to have input into the instructions to be provided to her.  Had it stopped there, then the husband may well have been stuck with the result. 

22. However, it is conceded that after receiving the valuation, the husband sought to ask specific questions of the valuer about the August 1989 value and was prevented from doing so as the wife refused to consent to his questions being provided to the valuer.  In the circumstances, I can have no confidence in the valuation of $130,000 and I therefore reject it.

23. The $9,000 debt which was owed to the husband by Mr L was completely repaid by October 1993.  When the parties commenced living together, the husband provided the wife with his pay packet each week.  At a later time, when he was no longer receiving a pay packet (from about 1994) the husband and wife contributed equally to all the expenses from their income and resources.

24. There is a dispute between the parties as to the quantity and quality of the furniture and contents in the wife's house at the date of cohabitation.  The wife asserts that the property was comfortably furnished with good furniture in good repair at that date.  The husband disputes this.  I find that the wife did have sufficient furniture for the parties to live in the house.  The husband concedes that there was ample cutlery, crockery, cooking utensils and the like.  He said there were no chairs in the living room.  He conceded there was a TV, refrigerator, table and chairs and a bed for them to sleep in.

25. The husband conceded he brought with him a doona and a microwave.  He also said he brought with him a pool table and two paintings, boxes of tools and a vacuum cleaner.

Employment

1. The wife was employed at the date of cohabitation with F Company Pty Ltd.  She remained there until 5 June 1990.  She then had a short period of employment with T Company and then to P Company Pty Ltd until early 1991.  From 1991 to January 2003, the wife worked for H Company Pty Ltd.  In January 2003, she retired.  During her employment in the period of cohabitation, the wife's employers made superannuation contributions for her.  The wife also maintained her own AMP superannuation policy.  All her entitlements are now contained in a Clearview Allocated Pension Fund.

2. The husband worked until about 2004 when he retired.  In November 2004, the husband withdrew all his superannuation which, at that time, was with AMP.  The sum was $21,462.  I accept the husband's evidence that he had, at an earlier time, moved about $12,655 worth of superannuation, which had accumulated with Clearview Super, to the AMP Superannuation Fund.  I accept the total amount of the husband's superannuation he received was $21, 462 and not $36,000 as asserted by the wife.  I also accept that the money was used for matrimonial purposes.

3. In 1997, the husband had a period of about six months where he did not receive any income.  Following his retirement, the husband became eligible for a pension.  He also worked in the business.

Conclusion

1. There was no evidence of the earnings of the parties during the cohabitation in terms of taxation documents.  In a case such as this, unless there is an agreement about the comparative incomes each party received during the course of the cohabitation, it is very difficult to measure these contributions.

2. The wife sought to tender some taxation documents at the trial which had never been disclosed.  Objection was taken to this course and I upheld the objection.  The husband urged the finding of equal contribution from income sources between he and the wife.  The wife urged a finding of roughly equal, perhaps marginally favouring, the wife due to the fact that the husband had six months of no income in 1997.

3. It is incumbent on those that contend for a greater contribution to prove it.  The wife had some capacity to do so but chose not to make a "timely disclosure" as required by the rules of this Court.  In the circumstances, I find the parties earning during the marriage was about equal.

Motor vehicles

1. During the cohabitation, cars were sold and purchased.  The parties each had cars at the commencement and conclusion of cohabitation.  Money was borrowed to acquire the vehicles and the parties each contributed either directly or indirectly to the acquisition of those vehicles.  In 1997, a Ford Fairmont was acquired for about $25,000.  This came from savings and borrowings.  In 1999, a Hyundai was acquired for about $12,000.  This came from the pay out of an insurance claim in relation to another car which had been owned by the husband.

Financial Management

1. Until 1994, the wife managed the family finances.  She paid all the bills.  The husband provided the wife with his income.  From 1994, they kept separate bank accounts and each contributed to the bills as they arose.  The husband said the wife predominantly did the family shopping and used a MasterCard to pay for the shopping.  He would then either provide her with one-half of a particular shopping bill or, alternatively, at the conclusion of the month when the MasterCard account came for payment he would provide half of the amount to pay it.

Property Acquisition

L Property

1. In 1994, the parties acquired a property at L.  It cost $137,500, together with further costs and duties.  They borrowed $143,000 from St George Bank.  The wife's property at E was provided as part security.  In 1998, the property sold for $145,000.  The parties cleared $15,345.

F Property

1. In February 2000, the husband purchased the property at F.  The purchase price was about $19,000 plus about $1,000 in costs.  The majority of the money was borrowed from St George Bank.  In April 2001, the husband used his inheritance from his mother of about $17,000 (not all used for this purpose) to pay off the mortgage.

Land at O

1. This property was acquired in February 2002.  The purchase price was $16,000 and each party contributed half of that cost.  The parties carried out work to the property which appears to be of a relatively minor nature.  The property was sold in May 2004 for $68,000.  The net proceeds were divided as follows:  $5,000 gifted to the wife's son; $5,000 gifted to the husband's son; $9,023.90 set aside to pay capital gains tax; $23,000 to the husband; and $23,000 to the wife.  Of the parties' money, about $11,000 was spent on a New Zealand trip; $3,600 spent on a driveway and patio at E property; and $5,900 spent on a new stove, washing machine, gas heater and bed for E property.  There were further trips to Cairns and Western Australia.  Ultimately, not all of the $9,023.90 for the capital gains tax was required and the parties shared the balance.

Retirement

1. In 2004, when the husband retired, he received $20,000 in superannuation payout.  In 2003, when the wife retired, she received an $8,000 lump sum being long service leave and wages.  The wife says her money was spent on a trip overseas in 2003 and I accept that evidence.

Improvements to E Property

1. The husband set out in his affidavit details of improvements carried out to the E property during the cohabitation.  He estimated costs of each item. The total was $62,250.  I do not accept that was necessarily the cost, but I do accept that the husband has used his best efforts to estimate the cost working from his recollections.

2. The wife, in reply, disputed the estimate of costs for many of the items.

3. I accept the husband's evidence in relation to this issue.  Most of the items relate to costs paid.  He does refer to some work which was carried out by him.  This is particularly so in relation to paragraph 26 of his affidavit.  I accept, therefore, that the items were acquired or the work was done but do not necessarily accept that the amount attributed to each item is, in fact, the amount spent.

Inheritances

1. As stated earlier, the husband received an inheritance in April 2001.  The amount received was $20,000; however, he gave $3,000 to his brother which left a net benefit for the husband of $17,000.

Business Stock

1. The husband says, in para.27 of his affidavit, that at the date of separation there was $53,000 worth of saleable stock at the property.  He said that there were 6,000 items including at E property.  The husband said that the wife refused to allow him to remove the stock until after she had them valued.

2. On 15 June 2006, the parties were at the Campbelltown Local Court.  Some agreement was reached for the husband to be able to collect items of personal property from the former matrimonial home.  The husband says in his affidavit that the wife agreed he could attend at the property that day and collect his possessions, business stock and property.  He said he attended but was not given any stock.  The husband, in his affidavit, gives great detail of the numbers of items and their potential value at the time of separation.  I accept that they were items of commercial value.

1. The wife in her affidavit at para.2.29, says:

   Following separation, I repeatedly asked the applicant husband to remove his belongings from my home.

2. She further claimed that all the stock was removed from the property before February 2006 by the husband's brother.  In her oral evidence, the wife conceded that she knew the stock was valuable at the time of separation.  She agreed that prior to 15 June 2006 there had been correspondence between the parties' lawyers about the husband removing the stock from the former matrimonial home.

3. The evidence is that, following the Court attendance at Campbelltown Local Court on 15 June 2006, with the assistance of police, it was arranged for the husband and helpers to attend at the former matrimonial home to collect the husband's possessions.  The wife says that on that day the remaining stock was still on the property.  The wife conceded that when the husband arrived at the former matrimonial home on 15 June 2006, her son was present and he was taking photographs of what was being removed.  She agreed that there was a clear photographic record of the stock left on the property at separation.  Those photographs were never provided.

4. During the hearing, the wife said that her son had removed stock items and taken them to Newcastle.  This information had not been previously provided in evidence read by me or to the Court.  She said he took them in a small truck and he did two trips.  I noted the wife was hesitant in giving this evidence and she left me with the impression she was understating the number of trips taken by her son in relation to the removal of the stock.  She did not keep a record of what she said he took.  She agreed her son would have taken the most valuable of the stock.  She seemed unsure of when the items were removed.  It could have been in 2006 or 2007.  The wife agreed it was after the time the parties reached an agreement at a community justice centre.  This was apparently after separation and before 15 June 2006.

5. Mr C gave evidence about the events of 15 June as he recollected them.  He said that, whilst the trailer was being loaded, the husband said to the male and female persons at the property words to the effect, "What about the [stock] from up the side of the house and my things from in the house?"  In context, the male and female people could only reasonably have been the wife and her son.  I accept Mr C as a witness of truth.

6. Ms P gave evidence about the stock she had seen in the back of the former matrimonial home.  This evidence was corroborative of the husband's evidence as to the numbers and types of items which were present prior to the separation.  She also gave evidence about 15 June 2006 events at the former matrimonial home.  She knew the wife from earlier meetings and saw her at the property on that day.  She said, "I went to go into the backyard to collect some [stock items] and […] (the wife) said, 'You are not allowed to go there.'"  She then said to the wife, "I want to get some [stock items] from the backyard."  The wife said, "All his possessions are in the garage.  You can't go in the yard."  Ms P was required for cross-examination.  I accept her as a witness of truth.  In her oral evidence, she said that she and her husband had ended the business they conducted in the middle of 2006.  This conflicted with evidence from her husband that he still sold stock items at markets.  I do not see this as impacting upon my acceptance of either Mrs or Mr P as witnesses of truth.

7. Mr P gave evidence. His evidence corroborated the husband as to the amount and variety of stock items the husband kept at the former matrimonial home prior to separation. He also gave estimates of value. His ability to make such evaluations and estimates was not challenged.  He estimated a value for certain stock items as not less than $60,000.  He attended the former matrimonial home on 15 June 2006.  He saw that the carport, which had housed business stock previously, was no longer housing stock. He saw there were no stock items between the carport and the front fence which had previously been there.  He could not see whether there were other stock items in the backyard.

8. In March 2006, he visited the former matrimonial home on behalf of the husband.  He asked to collect the husband's stock items.  I accept his evidence that he was not given any stock items but was given garden tools, equipment and an exercise machine.  About two weeks later, he rang the wife and told her, "I want to come and pick up [the husband’s] [stock items] and possessions."  The wife said, "You can only have his clothes."  In that same month, he went to the former matrimonial home and the wife gave him two suitcases.  Mr P gave oral evidence.  I accept him as a witness of truth.

9. The wife's oral evidence was that on 15 June 2006, the husband was to collect only the trailer in the garage.  She said that was all that was requested.  Her son, who was present at the former matrimonial home on 15 June 2006, she said, had been at the Court for the last two days; that is, during the hearing of this case now determined by me.  He did not give evidence when he was clearly able to do so and was a crucial witness to the events of 15 June 2006.

10. In her oral evidence, the wife agreed that in conversation with the husband, she and her son had put a value of $30,000 on the business stock at the former matrimonial home.  This related to a period post-separation.  The wife denied that on 15 June 2006 she denied access to the husband or his helpers to the backyard of the former matrimonial home.  She said there was no time to load the stock into the trailer.  She said she'd only agreed to the husband collecting the trailer on that day.

11. The wife also annexed letters from her solicitor to the husband's solicitor and the husband requesting that he remove the stock.  There was other evidence on the husband's part that he would not be able to maintain the stock at his F property.  There is also evidence of the husband of a value being attributed to the stock and the trailer of $20,000 in an earlier financial statement.  He explained the circumstances of that value of $20,000. He said he felt compelled, forced and under pressure to put a low figure in order to try and resolve the matter but it did not reflect his true view of the value of the stock.  I accept his explanation as such.

12. Weighing up all the evidence in relation to this matter, I conclude I do not accept that the wife has been truthful with me.  I accept that the wife had ample opportunity to provide the stock to the husband.  She could have allowed the husband's brother to remove them, as was requested.  That was prior to 15 June 2006.

13. I do accept that on 15 June 2006, the husband, with all his helpers, would have been able to remove the stock had the wife permitted it and had the stock been at the property.  I have a strong suspicion that the valuable stock items were not at the former matrimonial home on 15 June 2006.  I know that they were removed by the wife's son sometime in 2006 or 2007.

14. I do not accept the wife's evidence or the submission made on her behalf that the stock was only taken by her son to Newcastle because of more favourable storage conditions there.

15. I find the wife knew, at separation, the stock items were valuable and that she has, with the help of her son, decided to remove the items from the former matrimonial home for their own benefit; that is, the benefit of the wife and her son.

16. In the circumstances, I determine the value of the items should be not less than $30,000 and I propose to include them in the pool of assets as an asset of the wife in the balance sheet.

Other Matters

1. At the time of cohabitation, the husband had a child support commitment.  He paid $80 per week for two children.  He paid that for six years for one child and for a further two years for another child. 

2. During the marriage, the wife salary sacrificed $80,000 into her superannuation.  The wife's superannuation now has a value of $52,000.  The wife agrees she has withdrawn at least $20,000 to pay her legal costs.  The letter from the wife's solicitor tendered in evidence is equivocal in that it says the wife's costs (both paid and owing) is $35,000.  The exhibit which is the letter from the wife's solicitor in relation to costs is exhibit W2.

3. In exhibit X1, the wife's liability for legal fees is shown as $5,488.  There is a note saying that figure is to be updated.  When coupled with exhibit W2, showing the wife's paid and owing legal costs as $35,000, I must see that $29,512 of that amount is paid.  As there is no evidence about the source of such payment other than the withdrawal from the wife's superannuation, I must reasonably presume she has drawn $29,500 from her superannuation to meet that expense.

4. The husband, I accept, has paid $31,950 in legal fees.  I accept the husband has charged the F property with a mortgage of $50,000 which has, in part, been used to pay his legal fees.  I also accept he is in receipt of a Legal Aid grant for the hearing before me and is unlikely to be called upon for reassessment.  The wife does not have legal aid.

5. At the date of separation, the husband had $3,000 in savings.  At separation, the parties jointly owned Telstra shares.  The husband has purchased a caravan and a container for the property at F post-separation and from the monies borrowed against the property.  The husband is in receipt of the pension.  He produces a small amount of stock items on his land.  He lives with a friend and contributes to electricity or, alternatively, he lives in his caravan.  However, the zoning on the land does not permit him to live permanently in his caravan on the land at F.

6. The husband used part of his $50,000 loan to replace the engine in his motor vehicle and repay the loan of $5,000 he had outstanding.  He paid $7,000 for the caravan and he purchased a container.  He had $1,700 left from that fund.

7. In 2002, when the wife retired, she received a payment of $8,000.  She used the money to fund a trip overseas for the parties.  In about 1989 or 1990, the wife's mother paid for the wife's fare to travel to Europe.  The parties paid for the husband's fare and went on that trip.

8. The wife has occupied and cared for the former matrimonial home since separation.  It seems common ground she has met the outgoings.  The husband has maintained the F property since the separation.

The Balance Sheet

1. Exhibit X1 is a predominantly-agreed balance sheet.  The parties did not agree about item 12 on the asset list and item 4 on the liabilities list.  The legal representatives have chosen to include the wife's superannuation in the one pool in this respect. The Full Court decision of Coghlan & Coghlan[2005] FamCA 429; (2005) FLC ¶93-220 permits such an approach. In my view, it is an appropriate approach in this case.

2. The parties have not included the paid legal fees in the balance sheet but it appears to me, in fairness, they should do so because part of the husband's borrowings of $50,000 in the balance sheet (item 1 in the liabilities) was partly used to pay his legal fees ($31,950) and to purchase the caravan.  The caravan is also included as item 7 in the balance sheet.  I raised this matter during the course of submissions and gave the parties an opportunity to be heard.  I therefore propose to include, as a balance sheet item, the wife's paid legal fees of $29,500 and the husband's paid legal fees of $31,950.

3. The wife's paid legal fees have come from her superannuation which she had at the date of separation.  This is an approach supported by the Full Court in the decision of Chorn & Hopkins [2004] FamCA 633; (2004) FLC ¶93-204 .

4. Item 12 on the balance sheet I have already determined to be $30,000 for the business stock.  The balance sheet item number 12 was expressed in these terms “add back and/or wastage of assets”.  This is not really wastage as expressed in item 12 as I have determined the wife has control of those assets; namely, the stock.  The assets, therefore, total $560,511.

5. In relation to item 4 on the liabilities, being the wife's estimated legal fees, I propose to include the fees of $5,488 as set out in exhibit X1 together with two days at $3,500 as disclosed in exhibit W2 as the wife's daily charge.  I have assumed that the net effect of exhibits W2 and X1 in relation to the wife's legal fees is that all of the fees have been paid in relation to the fees referred to in exhibit W2, except for $5,488 and, in addition to that $5,488, the wife incurred two days legal fees of $3,500 per day.  In this case, the husband's legal costs of the trial have been paid for by Legal Aid and, again, in fairness, it is appropriate to include the wife's liability for legal fees in the balance sheet.

6. Item 4, therefore, will be adjusted to read "$12,488".  That makes the total liabilities of $66,086 and the net property of $494, 425.

Assessment of Contribution

The husband's contributions

1. The husband relies on the contributions identified in his outline of case document together with his submissions.  The contributions identified are as follows: 

   a)initial contributions: (see my findings);

   b)income earned during cohabitation: (see my findings);

   c)non-financial contributions: somewhat astonishingly neither party has set out any evidence about contribution as a home maker.  I am asked by the husband to assume it was equal.  I cannot, in the circumstances of this case, do anything else;

   d)the husband's other non-financial contributions consist of those asserted in paragraph 26 of his affidavit together with his work in relation to the business.  I accept those were contributions as made by him;

   e)the husband's inheritance of $17,000;

   f)the husband's $21,000 received from his superannuation following his retirement and during the period of cohabitation.  To a certain extent, I acknowledge this may form part of the husband's income to the extent that he made contributions to the superannuation.  There is no evidence to assist me with that particular finding.  To the extent that the superannuation represents contributions made by his employer, it is an additional contribution by him which needs to be taken into account and I do so here.

2. It was submitted by the husband that the contributions should be weighed as to 55 per cent to the wife and 45 per cent to the husband to the point of separation.  Contributions post-separation include each party's contribution to maintaining their properties post-separation. It was submitted my assessment of contribution at the date of the trial should be 55 per cent to the wife, 45 per cent to the husband.  Those are the submissions relied on by the husband.

The wife's contributions

1. The wife submitted the following contributions should be taken into account: 

   a)her initial contributions (see my findings);

   b)provision of free accommodations during the cohabitation;

   c)income earned (see my findings);

   d)superannuation: the evidence is that with the exception of the additional $80,000 of salary sacrifice, the contributions made to the superannuation came from the wife's employer.  To the extent that the wife made salary sacrifice of $80,000, then the husband has made an indirect contribution to that superannuation.  If the wife had not made that salary sacrifice, then the funds would have been available for the parties to use during the course of the cohabitation;

   e)the provision of the wife's property for the parties to live in and as security for the loan to buy the L property;

   f)the payment of the wife's fare to Europe in 1989 or 1990 by the wife's mother;

   g)contribution of the wife's $8,000 she received upon retirement.  This was used for funding the parties' overseas trip;

   h)from her income, like the husband, equal contributions to the outgoings and bills of the parties.  This contribution is really subsumed into the contribution of the parties from their incomes;

   i)borrowing money for the husband's car purchase.  This debt was then paid off from joint matrimonial sources;

   j)being the financial manager for the parties at least until 1994;

   k)assumedly, equal contribution with the husband as a homemaker and parent.

2. It was submitted on behalf of the wife the contribution should be assessed as 80/20 in her favour to the date of separation and 85/15 per cent in her favour to the date of hearing.  The wife's post-separation contributions include maintaining the former matrimonial home and not dissipating her savings.

Conclusion

1. The cohabitation was for 16 years.  Notwithstanding that I do not know the value of wife's property at the date of cohabitation, it does, in my determination, represent a very substantial asset.  The provision of accommodation provided by the wife during the cohabitation must also be seen as a very substantial contribution.  The evidence established that the parties contributed about equally through their income.  The husband had an inheritance of $17,000 which, in the circumstances of this case, is not insignificant.  The husband made further non-financial contributions which I have identified.

2. To my mind, the balance must tip significantly in favour of the wife and I conclude the assessment of contributions at the date of the hearing to be the 70 per cent to the wife and 30 per cent to the husband.  In this case, that means the husband would receive $148,327 worth of net assets and the wife $346,098 worth of net assets.

Section 75(2)

The husband’s submissions in relation to s 75(2)

1. The husband submits the following matters in relation to s 75(2): 

2. The husband is 68 and the wife is 69.  Each is in receipt of aged pension.  The wife also receives a further pension from overseas.  The wife has had the use of the home post-separation or at least since 21 February 2006 when the husband left the property. That is a period greater than two years.  Neither party is likely to work in the future to any significant extent.  The husband may produce some stock which he is able to sell.  It is submitted that s.75(2) factors favour the husband by an adjustment of five to ten per cent.

The wife's submissions in relation to s 75(2)

1. The wife said the husband is in receipt of Legal Aid.  There is no disagreement with the matters referred to by the husband as factors to take into account under s.75(2) in this case. It is submitted, however, that there should be no adjustment under s.75(2).

Conclusion

1. The division based on contribution sees the wife receive $346,098 and the husband $148,327.  That is a difference of $197,771.  The wife is in a slightly better position in terms of her income and, again, the husband may earn some income from selling items.  During the cohabitation, the husband paid child support for a period of eight years.  Although it was not a large sum it nonetheless meant part of the husband's income was not available to the parties.  This is a matter which I should take into account in favour of the wife.

2. In my view, the s.75 matters do require a slight adjustment to the husband which I assess at 5 per cent.  That will mean a final division of 65 per cent to the wife and 35 per cent to the husband.  In my view, the most significant matter warranting an adjustment in favour of the husband is, in fact, the disparity between the parties’ assets based on the conclusion of contribution.  The $197,000 disparity, in my view, requires an adjustment in favour of the husband.

3. The conclusion of 65 per cent to the wife, 35 per cent to the husband means the wife receives $321,376 and the husband receives $173,049 of net property. 

The wife's property

1. The wife retains the following property assets:

   (1) E property, $290,000; (2) St George Savings Account, $5,805; (3) Commonwealth Bank Account, $1,200; (4) Ford Fairmont, $2,500; (5) Business stock, $30,000; (6) Superannuation, $52,016; (7) Paid legal costs, $29,500; a total of $411,021. 

1. She has the following liabilities: 

   (1)MasterCard, $598; (2) Legal fees, $12,488; a total of $13,086 of liabilities.  

2. The net property of the wife totals $397,935.

3. The property assets retained by the husband is as follows: 

4. (1) F property, $105,000; (2) St George Bank account, $1,700; (3) joint Telstra shares, $2,760; (4) Toyota Town Ace van, $3,000; (5) Business, $80; (6) Caravan and container, $5,000; (7) Paid legal fees, $31,950; a total of $149, 490. 

5. The husband retains liabilities of:

   (1) Mortgage, $50,000; (2) Personal loan, $3,000; which is a total of $53,000. 

6. The net property retained by the husband totals $96,490. 

7. The husband is to receive $173,049. By my determination, he receives 35 per cent of the net assets.  Therefore, the wife is required to pay to the husband the sum of $76,559.

Just and Equitable

1. In the circumstances of this case, although it might ultimately transpire that the wife has to sell her home which would be a great shame, I do conclude that the division of 65/35 in favour of the wife is a just and equitable result.

The Court Orders

1. The wife, in her submissions, accepted that the orders should be framed on the basis that if there was an adjustment which required the wife to pay a sum of money then she should be given an opportunity to make such a payment before having to liquidate assets.  The wife should be given her best opportunity to be able to retain her house and, therefore, the jointly-owned Telstra shares should be transferred to the husband.  Consequently, I have included them in the husband's assets.  The wife should be given a reasonable period to raise the funds to pay out the husband.  In this case, I conclude six months to be appropriate.  It is longer than usually seen (three months or less), however, the wife may be able to resource some financial help from relatives in Europe and that might take a little while to organise. 

2. The parties are in dispute about the furniture in the former matrimonial home and have not been able to reach an agreement in relation to how that might be divided.  At the end of the day, I was asked by each party to make an order in the open "A" and "B" list style and I will do so. 

3. The payment to be made by the wife of $76,559 should be charged against her interest in the former matrimonial home and, ultimately, if the payment is not made, then the property is to be sold and after payment of sale expenses, the husband is to receive a percentage sum based on the percentage achieved by putting $76,559 over the value of that property of $290,000.  Providing for a percentage payment from the sale proceeds will allow for any adjustment created by market forces either up or down and thus each party will either equally gain or lose subject to the particular market should it become necessary to sell the house.

4. The husband should be required to remove his items of possession from the former matrimonial home within 28 days of the determination of which list he is to obtain.  The Toyota Town Ace van, which is retained by the husband to the extent that it requires transfer of registration should be executed by the wife forthwith.  The wife should forthwith transfer to the husband her Telstra shares.  Each of the parties should otherwise retain ownership of the items of chattels and personalty in their respective possession and I propose to grant leave to the parties to seek further orders in relation to the implementation of any of the orders made by me should that become necessary.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  26 August 2008