Finton and Finton - [2011] FamCA 384

FAMILY COURT OF AUSTRALIA

FINTON & FINTON

[2011] FamCA 384

FAMILY LAW - PROPERTY - Weight to be given to each party’s initial contributions - Weight to be given to each party’s contributions as homemaker and parent - Weight to be given to each party’s other non-financial contributions - Wife’s financial contribution from her income - Whether there should be add back entries in the balance sheet for the funds received by the wife from the sale of two properties post-separation

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth)

Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143
Chorn and Hopkins [2005] FamCA 334
Kennon & Kennon (1997) 139 FLR 118

APPLICANT:

Ms Finton

RESPONDENT:

Mr G Finton

FILE NUMBER:

SYC

3535

2008

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

2, 3 and 4 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Redmond Hale Simpson

THE RESPONDENT:

Mr G Finton In Person

Orders

(1)On or before the 27 September 2011 the husband is to pay to the wife the sum of $1,474,202.00. In the event of the husband failing to make the said payment by that time then he is to pay interest on any unpaid portion of the said sum as and from that date at the rate calculated pursuant to the Family Law Rules 2004(Cth).
(2)In the event of the husband failing to pay to the wife all of the money owing to her pursuant to order 1 hereof by 27 November 2011, then the wife has leave to apply to the court for enforcement orders including the sale of any asset of the husband.
(3)Pending the husband fully satisfying the payment required by order 1 hereof, he is not to sell any real estate or interest in any business, company or trust without first obtaining the wife’s consent in writing.
(4)Pending the husband fully satisfying the payment required by order 1 hereof, he is not to encumber any of his assets or interests other than for the purpose of paying to the wife the money owing to her pursuant to order 1 hereof. Should the husband propose to encumber any asset or interest of his for this purpose he is to notify the wife in writing of his intention to do so prior to entry into any loan agreement.
(5)The injunctions made herein do not prevent the husband from continuing to trade all of his businesses including the farming business which may involve the sale and purchase of livestock.
(6)Each party is otherwise to retain as their absolute property any assets standing in their name.
(7)I note that the matter has now concluded in the court and all outstanding applications are dismissed, other than any costs applications.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3535 of 2008

Ms Finton

Applicant

And

Mr G Finton

Respondent

REASONS FOR JUDGMENT

Introduction

Before the court are property proceedings in which the wife has at all times been represented by lawyers and the husband has appeared for himself at the final hearing. In the lead up to the hearing, the husband was represented; however, at the opening of the hearing, he told the court that he had “sacked” his solicitors following a meeting on the Friday. His words at that time suggested that he had received advice which was unpalatable to him. Yet, in submissions, he told the court that his solicitors had refused to act for him. He said that he had promised them not to tell the court about the reason for the termination of their services. Given the husband’s significant hearing problem, it is difficult to accept that he fully comprehended what had passed between him and his solicitors in relation to their retainer.
The husband is now 79 years of age. He has a significant hearing problem. The trial was conducted in a court fitted with a hearing loop; however, even in those circumstances, it was clear that at times he did not hear what was being said. I am satisfied, however, that he did hear the majority of the proceedings. Where I had a doubt about him having heard a question or important evidence, I caused it to be repeated until I was satisfied that he had heard it.
The wife is now 53 years of age. This is a first marriage for the wife and a second marriage for the husband. The parties have two children who are now 23 and 20 years of age. The husband also has children from his prior marriage. The parties commenced cohabitation at about the end of 1983 or the beginning of 1984. They married in 1986. During the period of cohabitation, there were two periods of separation: 12 months in 1996 and 18 months in 2002. The final separation took place in August 2004. On any reckoning, there was a long period of cohabitation.
At the date of the commencement of the cohabitation, the husband had a number of significant assets. The wife also had assets, although the husband said that he had no knowledge of those assets as it was not a topic about which he had any interest at the time.
Each party has provided extensive and detailed affidavit material setting out their asserted contributions pursuant to s 79(4) and matters relevant to s 75(2). That affidavit material indicated that they were seeking outcomes which were about 20% apart. However, at the time of the hearing, that gap was greater. The issues which emerged during, and before, the hearing appear to be differences in the weighting of the husband’s initial contributions and the value to be attributed to the totality of the wife’s contributions.
Annexed to the husband’s affidavit is a copy of a document titled “Pre-Nuptial Agreement”. That agreement was prepared by a solicitor. It is in the form of a deed and dated 14 October 1986. Neither party has sought to enforce the agreement nor has its significance been the subject of any evidence or submission.

The Background Facts

Where, in these reasons, I make statements of fact, they are, unless otherwise specified, my findings of fact.
In the lead up to the hearing, the parties prepared and provided to the court the following documents:
·Chronology of Non-Contentious Facts (now marked as exhibit “X1”);
·List of Issues of Fact (now marked as exhibit “X2”); and
·Joint Balance Sheet (now marked as exhibit “X3”).
Except for the date of the commencement of the cohabitation, the following non-contentious background facts emerge from those documents and the parties’ affidavit material.
The husband is now 79 years of age. He was born in European Country 1.
The wife is now 53 years of age. She was born in Australia.
The husband has three children from a prior marriage: M, P Finton and L. They were all adults when the parties commenced their relationship.
In 1960 or 1961, the husband built Property 1, an accommodation facility at Town 1 in NSW.
In 1964, the husband acquired the Town 2 Farm. He also, between 1973 and the date of the parties’ marriage, acquired property in and around Town 3. Of significance is his acquisition, on 2 April 1979, of Caravan Park 1.
In 1984, the wife acquired a one eighth share in the property at C Street, Sydney Suburb 1. The funds to purchase that property were borrowed from P Pty Ltd, a family company. During the course of the cohabitation, the wife received trust distributions from the P Family Trust.
One matter not resolved in the chronology is the date of the commencement of the cohabitation. However, in the husband’s cross-examination of the wife, he agreed with her that the cohabitation commenced either at the end of 1983 or the beginning of 1984.
In October 1986, the parties married at Town 4 in NSW.
In November 1987, the parties’ first child, B was born; and, in July 1990, their second child, C was born. They are now 23 and 20 years of age respectively.
Between 1987 and 1990, the husband continued to acquire parcels of land. He acquired a parcel of land for the sum of $80,000.00 in 1987; a parcel for the sum of $25,000.00 in 1988; and a parcel in exchange for other land resumed by the NSW government.
In 1990 or 1991, the wife acquired a one sixth share in the property at Sydney Suburb 2. The purchase price was $275,000.00 and the funds were provided by the P Family Trust.
In 1990 and 1991, the husband continued to acquire parcels of land near Town 2 and the Town 3 area; and, in 1991, he purchased land at Town 5.
In September 1991, the husband transferred to his son, P Finton a block of land which was part of the Hilltop subdivision. The transfer was said to be for consideration in the sum of $58,000.00; but, it was in fact a gift.
At the same time, the husband transferred to his son, M a block of land which was also part of the Town 6 subdivision. The transfer was said to be for consideration in the sum of $45,000.00; but, again it was in fact a gift.
In October 1991, the husband acquired the H property for the sum of $405,000.00. He also, in November of that year, sold Caravan Park 1 to his son, M for the sum of $1,350,000.00. In his oral evidence, the husband concedes that it may have been worth $1,500,000.00 at the time, but he does not know for certain.
Throughout 1993, the husband continued to acquire parcels of land, some of which were very small; and, in December 1993, he transferred to his son, P Finton, for nominal consideration, part of a closed road lot.
On 27 January 1994, the husband gifted to his daughter, L a block of land which was part of the Town 6 subdivision.
In 1994, the husband sold a block of land at P Street, Town 5 for the sum of $50,000.00.
In 1995, the husband sold to Mr and Ms O two blocks of land for the sum of $270,000.00. In that same year, he transferred to his son, P Finton, for a consideration of $1, a number of blocks of land. In 1996, the husband also sold some land for the sum of $258,000.00.
In 1996, the wife sold her interest in the property at Sydney Suburb 2.
Between December 1996 and December 1997, the parties separated. During that period, the husband paid to the wife the sum of $2,400.00 per month by way of maintenance, and the wife had the care of the children.
In February 1997, the wife, with her sister and brother, purchased the property at C Street, Sydney Suburb 3 for the sum of $450,000.00.
In 1997 and 1998, the husband continued to sell land which he had subdivided.
In September 2000, the husband transferred to his daughter, L a block of land which comprises two titles and which had a stated value of $60,000.00. No consideration was paid and at all times it was intended as a gift.
Through 2000 and 2001, the husband continued to sell land which he had subdivided.
On 8 August 2002, the parties separated for a period of 18 months.
During 2002 and 2003, the husband continued to sell land.
In March 2004, the parties reconciled and they moved with the children back to the Town 2 Farm.
In August 2004, final separation took place.
In November 2004, the husband sold to the Minister Administering Environmental Planning and Assessment the land at Town 5 which he had hoped to develop into holiday units. The sale price was $785,000.00.
On 7 August 2006, the husband sold to Mr and Ms Q a 50% share in Property 1 for the sum of $1,200,000.00, including stock. The husband used the proceeds to acquire the interest of the shareholders in Property 1 and he did not receive any of the proceeds for his own use. The effect of the transfer, as asserted by him, was that it was necessary for one of the partners, Mr U to lend him $400,000.00 of the purchase price for his interest.
In February 2010, the wife sold to her sister her one third interest in the property at Sydney Suburb 3 for the sum of $295,000.00. After certain expenses and the value of improvements effected by her co-owners was taken into account, the wife received the sum of $259,138.00.
In June 2010, the husband’s son, P Finton joined in the proceedings and commenced an action against him. That action was resolved and I was so advised at the commencement of the hearing. Leave was then granted for P Finton to withdraw from the proceedings, and I was told that a deed had been entered into between the husband and his son, P Finton in relation to his son’s claim against his property. I, however, did not receive into evidence a copy of that deed.

The Issues to be Determined

At the commencement of the hearing on 2 May 2011, the parties identified the issues as follows:
·The weight to be given to each party’s initial contributions;
·The weight to be given to each party’s contributions as homemaker and parent;
·The weight to be given to each party’s other non-financial contributions;
·The wife’s financial contribution from her income; and,
·Whether there should be add back entries in the balance sheet for the funds received by the wife from the sale of the properties at Sydney Suburb 1 and Sydney Suburb 3 post-separation.

Credit

The husband presented as a confident and respectful person. He was saddened by some of the allegations made against him by the wife in her affidavit material. He submitted that the wife’s affidavit material did not accurately or fairly portray what was, for the large part, a happy and successful union between them.
I accept that the husband gave his evidence honestly and to the best of his ability. He made concessions in favour of the wife, and he was, on a number of occasions, complimentary towards her as a person. He asked her about the content of paragraph 8 of her affidavit where she asserted that the date of the commencement of the cohabitation was “towards the end of 1983”. He asked: “[Ms Finton’s first name], are you sure of the date of 1983?” She replied: “Yes”. He then said: “I will go along with that”.
The wife presented as a nervous and quiet witness. She gave her evidence in an apparently honest manner. She made appropriate concessions when called upon to do so.
The wife’s affidavit material was drawn in an unfortunate manner in that such words were used as “regularly”, “constantly”, “many”, “demanded”, “invariably”, “had to”, “often”, “always”, “continually”, “repeatedly” and “entire period”. The use of such words in her affidavit material left me as the reader with a concern that the wife had engaged in a significant level of exaggeration in its drafting. That concern was confirmed when, in cross-examination, she conceded to some exaggeration.
In paragraphs 36 and 80 of her affidavit, the wife said that the husband travelled to European Country 1 every year for eight weeks. The husband put to her that this was not true. He produced an expired passport for the period of 1997 to 2007 which indicated only 5 trips by him to Europe, one of which, he said, was for his mother’s funeral. As best as I can see, he was in Europe from 31 December 1998 to 20 February 1999 for one trip, he was there in the beginning of 2000 to 3 May 2000 (there is no entry stamp, or exit stamp from Australia, that appears to relate to that trip), and from 26 February 2005 to 26 March 2005.
In her affidavit, the wife used her words to suggest that she was responsible for the entirety of particular work such as the typing of the husband’s correspondence. While she did not specifically say that she had typed each and every piece of correspondence by the husband, the wording of her affidavit left the reader with the understanding that that was what she was claiming. In cross-examination, she agreed that, until the parties obtained a computer, the husband had typed “a lot of letters” and she had typed some. When the computer arrived (a date not the subject of evidence), she said that she thereafter typed all of the husband’s correspondence.
Further, in the wife’s affidavit, in the description of the work said to have been performed by her on the Town 2 Farm, there is little attributed to the husband and that performed by him in order to be able to gauge the comparison between the work performed by each of them in relation to the farm. The wife did, however, make a statement that both of them worked hard during the cohabitation.
The conclusion I have come to about the wife’s affidavit evidence is that it is exaggerated and therefore the weight which can be given to it must be affected. I hasten to add that I did not think that the wife showed indications of exaggeration in her oral evidence.

The Relevant Law

Section 79 of the Family Law Act 1975 (“the Act”) enables the court to make orders with respect to the property of the parties to the marriage.
It is now well established that the determination of a s 79 application requires a four step process (Ferraro and Ferraro (1993) FLC 92-335; McLay and McLay (1996) FLC 92-667; Hickey and Hickey (2003) FLC 93-143), according to which the court must:
(1)Identify and value the net property, liabilities and financial resources of the parties at the date of the hearing;
(2)Assess the contributions of the parties pursuant to s 79(4);
(3)Consider the relevant s 75(2) factors; and,
(4)Consider what order, if any, in all the circumstances, is just and equitable.
The final step is a reflection of the requirement under s 79(2).

Section 79(4) Contributions

In determining the alteration of property interests, I am required to consider the contributions made by the parties pursuant to s 79(4) of the Act. That section provides as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)   the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)    the matters referred to in subsection 75(2) so far as they are relevant; and
(f)    any other order made under this Act affecting a party to the marriage or a child of the marriage; and

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

Section 75(2) Matters

Section 79(4)(e) of the Act requires a consideration of relevant s 75(2) matters. I here incorporate the provisions of s 75(2):
(2)The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(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; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(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; and
(e) the responsibilities of either party to support any other person; and
(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; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(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; and
(ha) the effect of any proposed order on the ability of a creditor of a party to      recover the creditor's debt, so far as that effect is relevant; and
(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; and
(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; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)   the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The Balance Sheet

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
At the commencement of the hearing, the court was provided with a copy of the joint balance sheet originally provided to the court on 7 October 2010 as set out hereunder for its consideration. That balance sheet was marked as exhibit “X3” in the proceedings.

ASSETS
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
1	Wife	[S Street, Town 7] (wife’s residence) **Based on single expert valuation		**575,000	575,000
2	Wife	[C Street, Sydney Suburb 3] **based on single expert valuation		NIL	295,000
3	Wife	2000 Mitsubishi […] motor vehicle Agreed value		E10,000	10,000
4	Wife	1998 horse trailer registration number […] Agreed value		E800	800
5	Husband	[Town 2] Farm (include’s husband’s residence) **based on single expert valuation		**1,100,000	1,400,000 Husband to administer questions to expert – See notes over
6	Husband	[Sport Resort] **based on single expert valuation		**1,800,000	1,650,000 Husband to administer questions to expert – See notes over
7	Husband	Lot […], DP […], [K Street], [Town 3] **based on single expert valuation		** 250,000	Husband to administer questions to expert- see notes over
8	Husband	[Property 1, Town 1] (half share) **based on single expert valuation		**373,000	373,000 Wife to administer questions to expert See notes over
9	Husband	Lot […], DP […] **based on single expert valuation		**320,000	Husband to administer questions to expert See notes over
10	Husband	[H Street, Town 3] (vacant land) **based on single expert valuation		**150,000	150,000
11	Husband	[Accommodation Complex], Lot […] DP […], [Town 6] **based on single expert valuation		**510,000	510,000
12	Husband	Livestock at [Town 2 Farm] **based on single expert valuation		**31,600	15,800 See notes over
13	Husband	Porsche Motor vehicle Agreed value		60,000	60,000
14	Husband	Volkswagen […] motor vehicle Agreed value		14,000	14,000
15	Husband	Machinery and Tools		4,200	4,200
16	Husband	Trading Account, ANZ, [Town 8] ([…]) In the name of [Mr G Finton]		(19536.55)	(19,537.55)
17	Husband	Cash Management A/c ANZ [Town 8] (V2) ([…]) in the name of [Mr G Finton]		6,671.78	Closed See notes over
18	Husband	Cash Management Account, NAB, Melbourne ([…])		Nil	Closed
19	Husband	Cash Management Account, NAB [Town 8] ([…]) in the name of [Mr G Finton]		10	10
20 “	Husband	Cash Management A/c NAB, [Town 8] ([…]) in the name of [Mr G Finton]		5,089.05	5,089.05
21	Husband	Loan – [H Finton] Family Trust **referred to in [Mr G Finton] Balance Sheet as at 30 June 2009		68,000	68,000
22	Husband	Loan – [H Finton] Pty Limited **referred to in [Mr G Finton] Balance Sheet as at 30 June 2009		94,856	94,856
23	Husband	Westpac a/c no. […] – [H Finton] Nominees Pty Ltd as Trustee for [H Finton] Family Trust No. 1 (linked to [Property 1]) (1/2 share of balance $2,865.77)		1,432.88	$1,432.88
24	Husband	ANZ Business Classic a/c – [H Finton] Pty Limited & [P Finton] Family Trust No. 1 t/as [Sport Resort] a/c no. […]		5,524.21	2,762.05 See notes over
25	Husband	Account [S Bank], [European Country 1]		NK	See notes over
26	Husband	ANZ V2 Plus Statement [H Finton] P/L & The Trustee for [P Finton] Family Trust a/c no. […] (1/2 share of balance $9,841.35)		$9,841.35 See notes over	$4,920.67
27	Husband	ANZ Business Classic Statement account number […] in the name of [H Finton] Pty Limited and [P Finton] Pty Limited ATF [P Finton] Family Trust		$7,989 See notes over	$3,994
28	Wife	Balance bank accounts		$18,840.00
Total		$ 5,405.241	$5,244,553.26

ADDBACKS
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
28	Husband	City Pacific Mortgage Trust Add back absent explanation from husband as to disposition of funds – referred to in [Mr G Finton] Balance Sheet 30.06.2009		8,414	Refer notes over
29	Husband	ANZ Term deposit account no. […] Add back absent explanation from husband as to disposition of funds		103,226	Nil – a/c closed
30	Husband	ANZ Business Classic account […] in the name of [Mr G Finton] – Add back absent explanation from husband as to disposition of funds		12,165.85	Closed
31	Husband	ANZ Business Classic Account […] in the name of [H Finton] Pty Limited – add back absent explanation from husband as to disposition of funds		1,681.37	Closed
32	Husband	Cash Management a/c ANZ [Town 8] V2 Plus […] add back absent explanation from husband as to disposition of funds		16,293	Closed
33	Husband	ANZ Progress Saver a/c no. […] in the name of [Mr G Finton] add back absent explanation from husband as to disposition of funds		6024.39	661.63
34	Husband	ANZ V2 Plus […] in the name of [Mr G Finton] add back absent explanation from husband as to disposition of funds		6,444.88	Closed
35	Husband	ANZ V2 Plus […] in the name of [Mr G Finton]		5,860.41	5,860.41
Total		$ 154,249.49	661.63

LIABILITIES
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
36	Husband	NAB mortgage regarding [Accommodation Complex, Town 6]		E250,000	280,000
37	Husband	Loan to [Mr U] regarding [Property 1]		300,000	300,000
Total		E$550,000	$ 580,000

SUPERANNUATION
Member		Name of Fund		Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
38	Wife	Colonial Super Trace		Accumulation	651
39	Husband	Nil	N/A
Total		$ 651	$ 0

FINANCIAL RESOURCES
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
40	Husband	ANZ a/c […] (DEPOSIT ACCOUNT) (1/2 share of balance $7,989.18)		NK	$3,994.59 See notes over
41	Husband	Westpac a/c […] (deposit account) (1/2 share of balance $54,619.61)		NK	$27,309.80 See notes over
Total		$5,559,490.00	$31,304.39

Notes

In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:

Why an item should not be on the balance sheet.
Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.

Any other comment a party wishes to make in relation to the disputed item.

Item No
25	Funds previously in this account were expended during a family holiday in 1998/99 to [European Country 1]. This was the last time the husband accessed this account. As a result of the husband’s mother’s death, the husband inherited a sum of approximately $15,000.00 which monies were placed into this account in or about April 2000. Access to this account was thereafter gifted to the husband’s first cousin, [Ms Y], in recognition of her role as carer for the husband’s parents during their final years. He does not wish to involve his cousin in these proceedings and considers that any money remaining in this account belongs to her.
28	The husband invested some money in the City Pacific Mortgage Trust which monies were eventually lost when the company went into liquidation. There are no prospects of recovering any money from this investment. The husband has no documentation pertaining to this.
35	The husband does not accept that monies given to the wife by her mother were in the nature of a loan and understood that the money was gifted to her
6.	The husband asserts an agreement reached between he and his son [P Finton] that as a result of work performed by [P Finton] over a 25 year period for which he was not otherwise adequately compensated, the husband would transfer half of his interest in the [Sport Resort] and [Accommodation Complex at Town 6] to [P Finton]
8	The valuation husband relying on carried out by Firm 1 February 2010 on husband’s sole instructions. Wife has retained Mr BB of Firm 2 to determine whether to accept valuation and questions have been administered and waiting on responses.
5	Expert states (letter 23.9.2010) difference in valuations depends on what lots are either included or excluded.
6	Expert states (letter 23.9.2010) difference in valuations depends on what lots are either included or excluded.
7	Expert states (letter 23.9.2010) difference in valuations depends on what lots are either included or excluded.
9	Linked to 5 and 6 as regards which lots belong to which properties. Wife asserts highest and best use is her value as the lot has separate building entitlements.
26	Wife does not concede [P Finton’s] half share
27	Wife does not concede [P Finton’s] half share
39	Wife asserts this liability is a business expense linked to [Property 1]
40	Wife asserts this liability appears to be a business expense
41	Without further details, wife unable to accept
42 to 50	Without further details, wife unable to determine whether personal liability or business liability
51	This would appear to be a repeat of item 38 above
52 to 55	Without further details wife unable to determine whether personal liability or business liability
12	Husband asserts that his son [P Finton] owns half the livestock at [Town 2 Farm]
17	Husband asserts this account has been closed
24	Husband asserts that his son [P Finton] is a half interest holder in this account. Therefore, the value of his share ifs $2,762.05
60 and 61	Husband asserts that these accounts hold monies that are paid by way of deposit in advance by visitors to [Property 1 and Sport Resorts]. The funds are only accessed once visitors have completed their stay.

The wife provided a balance sheet which she contended for. Such document being marked as “Aid Memoir 1”. In submissions, counsel for the wife submitted that the proceeds received by her from the sale of her Sydney Suburb 3 property in February 2011, namely $259,138.00, should not be included in the balance sheet as an add back. She submits that in paragraph 126 of her affidavit she sets out the expenses she has incurred over the last two and a half years. Those expenses amount to $380,000.00. It is submitted, at least inferentially, that the money obtained by the wife of $259,138.00 from the Sydney Suburb 3 property sale was used to recompense her for those expenses. However, item 68 on the joint chronology is as follows:
23/08/2007. [C Street, Sydney Suburb 1] sold for $2,000,030. The wife receives her share of $240,000 which was utilised to repay debts the wife had incurred between 2004 and 2007.
In paragraph 33 of the wife’s affidavit she says that on 16 October 2007 she received the sum of $248,175.00 from the sale of her share in the C Street, Sydney Suburb 1 property. She banked those sums to her Commonwealth Bank Streamline account and she said: “I set out later in this affidavit how those monies have been utilised by me”.
In paragraph 35 of her affidavit the wife says “On 4 February 2010 the sale took place and I received the sum of $259,138.04 (from the Sydney Suburb 3 property). This amount was banked to the credit of my Commonwealth Bank Streamline account and I set out later in this affidavit how those monies have been utilised by me”.
In paragraph 126 of her affidavit the wife says that she used the monies she received from the Sydney Suburb 1 and Sydney Suburb 3 properties:
to pay off debt, pay legal fees, assist the children and purchase necessary items for [S Street, Town 7] and maintenance as well as ordinary weekly living costs. In particular as set out below, I purchased a car for C and have paid on her behalf course fees, NIDA fees, food costs, accommodation costs, dental fees, rent and fees associated with her entrance into [a national modelling competition] and becoming a finalist. Listed below are some of the larger expenses that I have incurred over the past two to two and a half years.
The wife then set out those larger expenses which total $308, 426.00.
The amount of money received by the wife from the two sales is $507, 313.00. In addition to that information the wife had an income in the 2008 financial year of $1,340.00 and the 2009 financial year of $3,548.00. No details are provided for her 2010 income but it is reasonable to assume it was similar to the 2009 year. Ignoring the payment of legal fees and the cost incurred for purchase of a car for C, the wife appears to have spent about $110,000.00 per year since August 2007. If she has used most of the $515,000.00 she has had available to her from the sale proceeds of her two properties and her meagre income. In the circumstances that provides, in my opinion, an adequate explanation for why the proceeds of sale of the properties owned by the wife during the course of cohabitation and sold post separation should not be included as an add back in the balance sheet.
During the course of submissions I drew counsel’s attention to the decision of the Full Court in Chorn and Hopkins [2005] FamCA 334. I suggested that decision would prima facie require the proceeds of sale of the properties, sold by the wife post separation, to be included in the balance sheet. Counsel for the wife submitted if that was the case there are extraordinary reasons why in this case that should not happen. Some of those reasons are as follows. The wife has adequately explained how expenditure took place. Although there is a concession that child support was paid for the children by the husband post separation that concluded when the children each turned 18 years of age. There is no evidence before the court of the amount paid in the form of child support.
It is clear that post separation the wife had the care of the children and the responsibility for their upkeep. The husband did not pay nor was required to pay spouse maintenance. Part of the reason why no spouse maintenance would have been payable was the availability to the wife of the proceeds of sale of the two properties. It is therefore somewhat unjust to require the wife to support herself from the sale proceeds of her properties and at the same time require that those proceeds be added back as capital to the balance sheet.
In addition, it is submitted that the husband has divested himself of assets for which the wife does not seek an add back. One of those assets sold was the property at Town 5 which was sold on 23 November 2004. The husband received $785,000.00 from that sale. No detailed explanation has been provided by the husband or evidence produced to establish how those funds were used otherwise than in his own maintenance and support.
Having regard to all those matters I consider that it is inappropriate to add back to the balance sheet the money received by the wife from the sale of her Sydney Suburb 3 property.
Although I have said I will not add back the sale proceeds of the wife’s property, so sold, I do note that some items in the balance sheet may have been sourced in such funds.
In relation to item 8 of exhibit “X3” the wife in submissions advised the court that she accepted the valuation proposed by the husband for Property 1 namely $373,000.00.
The wife proposed that pursuant to exhibit “W4” the credit in her bank accounts in the sum of $18,840.00 be included as an asset in the balance sheet. There was no entry in exhibit “X3” to represent the wife’s savings in any bank accounts thus it will be necessary to add that item to the balance sheet.
The wife submitted that the adjustments to items 16 through to 20 in exhibit “X3”, as contended for by the husband, should not be affected. The husband had tendered in the hearing a statement of his current balances for the accounts referred to at the above items.
Given that the figure attributed to the wife’s savings comes from a recent print out in respect of the wife’s accounts it seems to me, as a matter of fairness, that the husband’s accounts should be looked at about the same date and accordingly I propose to permit the husband to make those adjustments.
In relation to items, 24, 26 and 27 of exhibit “X3” it was submitted on behalf of the wife that the values contended for, by her, should be accepted rather than the values contended for on the part of the husband. This dispute arises because the particular items relate to bank accounts which the husband says are partnership accounts between himself and his son, P Finton.
The wife argues that the husband’s evidence in relation to an alleged partnership between himself and his son P Finton should not be accepted. The wife drew my attention to annexure “I” of the husband’s affidavit sworn on 11 March 2011.
In paragraph 147 of his affidavit the husband said as follows:
Lot […] and […] have however been ear marked for use at some stage in the [Sport Resort] and it is the case that the partnership agreement signed by [P Finton] and I, which sees [P Finton] an equal owner of the [sport Resort] subject to certain conditions extends the [Sport Resort] to include Lots […] and […] in Deposited Plan […], as well as Lot …] in Deposited Plan […], and Lot […] in Deposited Plan […], which is the accommodation facility attached to the [Sport Resort] known as [Accommodation Complex, Town 6].
The annexure marked “I” is specifically referred to in paragraph 183. The sentence which identified the annexure is as follows:
We also had discussions that culminated in our entering into a partnership agreement, which is annexure hereto and marked with the letter “I” (the partnership agreement).
Paragraph 183 formed part of a large section of the husband’s affidavit commencing at paragraph 168 and concluding at paragraph 193 which was struck out on the basis of relevance. The relevance argument arose from the fact that the husband’s son P Finton had been a party to proceedings and was suing his father under the partnership agreement and otherwise. Before the trial commenced leave was granted for P Finton to withdraw from proceedings on the basis that he had resolved his action with the husband and had entered into a deed. Paragraphs 168 through to 193 were the husband’s evidence in relation to both the action by P Finton against him and the proceedings with the wife. The partnership agreement was relevant to both issues and clearly recognised as such by the wife and accordingly referred to in submissions.
The wife’s submission in relation to the partnership agreement marked as annexure “I” to the husband’s affidavit is that it did not evidence a partnership at all and would not be enforceable as such. It is submitted that if it serves any purpose it appears to be an “offer to buy”.
In my view the agreement does recognise an acceptance by both parties to the agreement (the husband and P Finton) that they were to share equally in all expenses and profits relating to the business known as the Sport Resort for a period of 10 years commencing 1 May 2008.

Although I raised with both parties in court the fact that I did not have a copy of the deed entered into between the husband and his son to settle P Finton’s action against him in these proceedings no attempt was made by the husband during the course of his case to tender such document. When he sought to do so during the course of submissions he did not have a copy in court to tender and I did not permit him to reopen his case for the purpose of obtaining an adjournment to obtain the document, return to the court and tender it. I do not know, therefore, from evidence (as opposed to assertions by the husband from the bar table) of the extent or content of the agreement. I do know from the husband’s oral evidence that the recent sale of cattle will give rise to the husband receiving half of the sale proceeds and his son, P Finton receiving the other half. I also know from the husband’s oral evidence that he and P Finton had divided the cattle that belonged to their partnership between them equally. Having regard to all those circumstances I propose to adopt the figures contended for by the husband in relation to items 24, 26 and 27 on exhibit “X3”.
There is an issue between the parties about the value attributed by the single expert to the husband’s interest in the Town 2 Farm and Sport Resort. Those two assets appear as items 5 and 6 on exhibit “X3”. The husband did not require the attendance of the single expert at the hearing and therefore did not put any propositions to him. The husband relied on exhibits “W5”, “W9” and “X4” in his submissions in relation to the value of those two items. The wife relied on exhibit “W10” being copies of advertisements for the sale of the Sport Resort, placed by the husband. The husband contends that the valuer incorrectly described the land which formed the Sport Resort. He said that Lots … and … in DP … were not part of the land which should have been valued in the Sport Resort.
Exhibit “X4” consists primarily of a copy of a letter dated 23 September 2010 from the single expert to the husband’s then solicitors, with annexure, as referred to in that letter. Unfortunately, the correspondence under reply on that letter, namely a letter from the husband’s solicitor to the single expert dated 2 August 2010, is not included.
The single expert points out that the inclusion of Lots … and … in the valuation of the Sport Resort were consistent with instructions.
It appears the single expert has valued the parcels of land on their highest and best use. In his letter he points out the folly in attributing particular blocks of land to the Town 2 Farm which are approximately 12 kilometres distant from that main body of property. He says: “Including these Lots (Lot […] and […]) with the [Sport Resort] with a smaller site area of 74.95 hectares increases their added value. I note in the first valuation of the [Sport Resort] my assessed land value was $245,250 and in the second valuation was $390,000”. The expert points out other differences between his first valuation and the latter valuation.
The combined value of the Sport Resort and the Town 2 Farm as contended for by the husband in the balance sheet is $3,050,000.00. The combined value of those two assets as valued by the court expert and pursued by the wife is $2.9 million. Given that both those assets are to be retained by the husband I had difficulty understanding the benefit to him of adopting the figures he was contending for.
In the orders sought in this case the wife does not seek the transfer of either the Town 2 Farm or the Sport Resort to herself. She seeks a payment of cash. The husband does not seek the transfer of the Town 2 Farm or the Sport Resort to the wife.
As I said to the husband during the course of his submissions I fail to understand the importance that the husband says should be attributed to the difference between the two approaches of valuation as referred to in exhibit “X4” in terms of the impact on the determination which needs to be made by the court and in terms of any unfairness which might flow to either party as a result of the court accepting the valuations contended for by the wife as opposed to those contended for by the husband. I propose therefore to adopt the latter valuations of those two properties as determined by the single expert.
In relation to item 12 on exhibit “X3” the husband had claimed a figure of $15,800.00 as the value of the livestock on the Town 2 Farm. The valuation figure submitted by the wife is $31,600.00. That figure was accepted by the husband as the total of the value of the stock on the property. However, his assertion is that half of the stock belonged to his son P Finton pursuant to their partnership agreement. I had accepted the husband’s evidence in relation to the partnership. In oral evidence the husband said that following the division of the cattle between himself and P Finton, following the winding up of their partnership, he had cattle now remaining in his possession, together with anticipated proceeds from the recent sale of some cattle. The total of those figures was said by the husband to be $20,000.00. I propose to include that figure in the balance sheet.
In relation to item 17 and 18 on exhibit “X3” I accept the husband’s evidence that those accounts have been closed. I do not include item 19 in exhibit “X3” as it is de minimis. In relation to item 20 in exhibit “X3” I accept the husband’s evidence as to the balance of that account as it forms part of exhibit “H5”.
In relation to item 23 on exhibit “X3” this is an asset expressed to be a half share entitlement in a bank account “linked to [Property 1]”. The husband’s entitlement in the Property 1 business has already been valued and included in the balance sheet and I do not propose to include this item on the balance sheet.
In relation to item 24 in exhibit “X3” this is an asset expressed to be a half share entitlement in a bank account “linked to the [Sport Resort] business partnership with [P Finton]”. The asset is an asset of G Finton Pty Limited. Given that a loan account of the husband with that company has been included in the balance sheet I must accept that company was valued for this proceeding and as such the value of any credit balance sheet would have been considered. I will not include this item in the balance sheet.
Further, in relation to item 24 in exhibit “X3” this account relates to a partnership between the corporate entities of the husband and P Finton which I accept existed. However, the account relates to the business of the Sport Resort. No separate valuation has been obtained in relation to that business. If the Sport Resort is sold, in the absence of a disclosed lease to the husband, as the operator of the centre, then that business would be lost with the sale. There is no suggestion that there is any lease in existence and again I consider it unfair to include this asset in the balance sheet given that the Sport Resort has been included in the balance sheet.
In relation to items 26 and 27 on exhibit “X3” the same approach should be taken as I have taken to item 24 and accordingly those amounts will not be included in the balance sheet.

Add Backs

Exhibit “X3” is a joint balance sheet provided to the court by the parties on 7 October 2010. Part of exhibit “X3” relates to “add backs”. Items 29 through to 34 inclusive all have the following notation “addback absent explanation from husband as to disposition of funds”. Nothing appears in the notes to exhibit “X3” to clarify the husband’s position in relation to those entries.
The husband did not produce any evidence to provide an explanation for the disposition of those funds nor did he give any evidence in his affidavit or orally in relation to same. The husband attempted to give evidence from the bar table in relation to the items during the course of his submissions, however, I can not take those explanations into account. It is a sad outcome of this case that the husband allowed himself to be unrepresented at this hearing. Had he been represented his lawyer would have clearly understood the implication of the words appearing on exhibit “X3” on items 29 through to 34 should the husband fail to provide an adequate explanation. In a very generous way, the applicant wife in her submission only addressed item 29 in the list of add backs. That is a sum of money of $103,226.00. I propose to include that sum in the balance sheet and otherwise take it into account under s 75(2) that the husband had failed to provide an explanation for the expenditure of the other funds referred to in items 30 through to 34 inclusive in circumstances where there may well be proper explanations.
No submission was directed to item 35, although it appears that it was conceded by the husband in preparation of exhibit “X3” that item 35 ought to be added into the balance sheet as an add back.
I will exclude item 28 as the notes to item 28 provide an explanation by the husband as to those funds.
In relation to the liabilities set out in exhibit “X3”, the wife’s counsel was critical of the failure by the husband to have Mr U provide evidence in relation to an alleged debt of $300,000.00 by the husband to him arising out of the sale of Mr U’s interest in Property 1 to the husband. There is a significant amount of evidence by the husband about that issue and on balance I do accept that the husband has the liability as he has claimed. I will include it in the balance sheet.
The only superannuation held by either party is held by the wife and her total superannuation is $651.00. As it is de minimis in the scheme of this case I propose to exclude superannuation from the balance sheet and take it into account under s 75(2).
Items 60 and 61 on the balance sheet appear under the heading “Financial Resources”. The details of the accounts have been provided by the husband to the wife. In the explanatory notes the following appears “husband asserts that these are accounts of money that are paid by way of deposit in advance by visitors of [Property 1 and Sport Resorts]. The funds are only accessed once visitors have completed their stay”. I do not propose to include these items in the balance sheet. In relation to Property 1 the husband is entitled to only half of the profits of that business. Deposits for forward bookings do not represent profits. Any share of the revenue from Property 1 will be taken into consideration as part of the husband’s current and projected incomes.
The same is true of any deposits paid in respect of bookings for the Sport Resort.

Conclusion on the Balance Sheet

I find the assets and liabilities of the parties are as follows:

Assets	Value ($)
W	S Street, Town 7	575,000.00
W	2000 Mitsubishi	10,000.00
W	1998 Horse Float	800.00
H	Town 2 Farm	1,100,000.00
H	Sport Resort	1,800,000.00
H	Lot …, DP …, K Street, Town 3	250,000.00
H	Property 1, Town 1	373,000.00
H	Lot … DP …	320,000.00
H	H Street, Town 3	150,000.00
H	Accommodation Complex Lot … DP …	510,000.00
H	Livestock	20,000.00
H	Porsche	60,000.00
H	VW Golf	14,000.00
H	Machinery & Tools	4,200.00
H	ANZ Cash Management …	NIL
H	NAB Cash Management …	1,087.00
H	Loan G Finton Family Trust	68,000.00
H	Loan G Finton Pty Limited	94,856.00
H	ANZ V2 …	Not Included
H	ANZ …	Not Included
W	Balance of Bank Accounts (W4)	18,840.00
Total Assets	5,369,783.00

Add Backs
H	ANZ Term Deposit	103,226.00
H	ANZ V2 …	5,860.00
Total Add Backs	109086.00
Total Assets and Add Backs	5,478,869.00
Liabilities
H	ANZ Access Advantage …	19,475.00
H	NAB Mortgage on Accommodation Complex	268,000.00
H	Loan to Mr U regarding Property 1	300,000.00
Total Liabilities	587,475.00
NET ASSETS	4,891,394.00

Section 79(4) Contributions

Initial Contributions

The wife had the following assets and financial circumstances at the date of commencement of cohabitation which is now agreed as late 1983 or early 1984:
·A one eighth interest in a property at C Street, Sydney Suburb 1. It was a commercial property with three tenants. The wife had received her interest as a gift from her mother. The purchase price was $380,000.00. The joint chronology has this property being purchased in 1984 which would place it after the commencement of cohabitation. It is clearly the case that the husband made no contribution towards the acquisition of the property.
·A Mitsubishi motor vehicle purchased prior to marriage for $18,000.00.
·Household items and personal effects.
·Shareholding in P Pty Ltd. The wife was a shareholder with her mother and two siblings. The assets included a residential property at Sydney Suburb 4 and a business and real estate at Sydney Suburb 5. No value is ascribed to the shares.
The husband had the following assets and financial circumstances at the date of commencement of cohabitation:
·A one third interest in Property 1. The husband said that in 1977 he sold two thirds of Property 1 for $400,000.00.
·The Town 2 Farm. The husband owned the totality of the land comprising this property at the date of cohabitation with the exception of lots …, … and … in DP … which were purchased in 1990 for $4,704.00. The husband has carried out substantial improvements to the property since the purchase. He has described those improvements in his affidavit.
·Farm machinery.
·Caravan Park 1. The park was purchased in 1979 for $160,000.00. The husband and his two sons carried out extensive improvements, as described in his affidavit prior to the commencement of cohabitation. After cohabitation the husband built a restaurant at the park. In 1989 the husband transferred part of the business to his son M. In 1991 the husband sold the caravan park to his son M for $1.35 million. In his oral evidence the husband conceded this sale was below the actual value of the park at the time (in his opinion).
·The H Street, Town 3 land. This was purchased by the husband in 1979. It was two lots of land and cost $105,000.00. This land is where the Sport Resort and the Accommodation Complex now stand. The Husband subdivided 48 acres of the land into five 8 acre blocks. He sold those blocks. He gave each of his children a block which was subdivided from this land. The sale of the lots and the transfers of land to the husband’s children occurred during the cohabitation. In 1991 the husband purchased two closed roads for $884.00 each and these form part of the H Street, Town 3 land.
·Section 1. This land was part of the H Street, Town 3 land which was transferred to P Finton in November 1995.
·A Porsche motor vehicle and a VW motor vehicle.
·A Jeep truck.
·Household furniture and effects.
The wife acknowledged in her submissions that the initial contributions of the husband “significantly exceeded hers at the time of commencement of cohabitation”. It was appropriate for the wife to make this concession as the force of her concession is really born out by the financial history of the parties after early 1984.

Financial Contributions during Cohabitation

I find the husband made the following financial contributions during the period from the beginning of 1984 until final separation in August 2004.
·The husband asserted and I accept that he worked full time for the entire period of the relationship. No evidence was provided by the husband as to his earnings throughout the period of cohabitation. Given that I do know the wife’s income as set out in exhibit “W3” and that it was relatively low, it is reasonable to assume, given what was achieved by the parties in terms of asset development during the course of the cohabitation, that the husband’s income was greater than the wife’s. It is not possible to determine how much greater it might have been. The husband claimed in his affidavit that throughout the period of cohabitation he met the costs associated with raising the family including education expenses, living expenses, holidays, motor vehicles, furniture, clothing, groceries and household bills. It was not suggested to the husband in cross examination that he did not contribute in that fashion and I therefore accept his evidence in that regard.
·In November 1990 the husband purchased Lots …, … and … in DP … for $4,704.00. This land comprised closed roads and now forms part of the Town 2 Farm.
·In October 1991 the husband purchased land at Town 4 for $405,000.00. This land became known as the H property. The husband does not provide details of where the funds came from to acquire that property. It was acquired during the period of cohabitation.
·In August 1991 the husband acquired land in Town 5. The initial land was purchased for $103,000.00. The husband does not say where the funds came from to purchase that land. However, in later 1991 the husband sold his interest in Caravan Park 1 to his son M (M Finton Nominees Pty Limited) for $1,350,000.00. Part of those monies was used to acquire further land in Town 5. Parts of those lands were sold in 1994 and the husband says he did not generate “much profit” from the sale. In 1994 he also sold the property at P Street, Town 5 for $50,000.00. This property had been purchased in 1991 for $46,000.00.
·In 2004 the husband sold the headland block at Town 5 for $785,000.00. He asserts that the sale proceeds were used to finish the Sport Resort. He did not provide details of how those monies were expended on the resort. He did not provide particulars of whether all of the monies received from the sale of the headland property in Town 5 were expended on the Sport Resort.
·The husband contributed to the development and building of the Sport Resort. The resort was built on land owned by the husband at the time of the commencement of the cohabitation. In about 2000 he purchased 72 acres of land being Lots … and … in DP … with a view to that land forming part of the Sport Resort at some future point. No evidence of where the funds came from to purchase the property was provided. Work on the project commenced after council approval in late 2000. It took 6 years to complete in two stages. It includes the Accommodation Complex. The cost of the development of the land at the first stage was over $1 million. The Sport Resort includes sports storage areas, accommodation with 55 beds, indoor sport area, restaurant, outdoor sport areas, car parking, staff accommodation, disabled facilities and a cocktail bar.
·The first stage included the indoor sports area, the sports storage areas and outdoor sports areas. Sufficient accommodation to make the resort operational was provided. Staff accommodation, a licensed restaurant, cocktail bar and children’s play area was also built. Infrastructure works such as sports storage areas and landscaping were also completed at that time.
·Stage 2 included facilities such as sauna, spa, solarium and massage room. A conference, film and meeting rooms were also completed. An additional accommodation block was added. The cost of stage 2 was approximately $1 million. The first stage was operational in 2002 and the second stage was completed in 2004. At the time of separation it appears there were no monies owing on the Sport Resort.
·The building of the Accommodation Complex cost approximately $550,000.00. Some money was available from the takings of the Sport Resort and some money from the sale of the Town 5 headland block was used. Again no detail was provided as to the funding of the development.
I find the wife made the following financial contributions during the period from the beginning of 1984 until final separation in August 2004.
·In 1989 the wife acquired a one sixth share in a property at Sydney Suburb 2. The property cost $275,000.00 (in total). The whole of the purchase price was borrowed from the family company P Pty Ltd. The wife says the company forgave the debt.
·In 1996 the Sydney Suburb 2 property was sold and a property at Sydney Suburb 3 purchased in 1997. The wife held a one third interest in the property which cost $450,000.00. The purchase price was paid by P Pty Ltd. The property was rented and the wife received a share of rental.
·In July 2001 the wife received her share from the winding up of P Pty Ltd. She does not say how much she received or whether the receipt was a capital or income receipt.
·In September 2004 the wife purchased the property at Town 7 for $380,000.00 plus expenses. The wife borrowed $100,000.00 from her mother and the husband advanced $300,000.00 which had been borrowed from the National Australia Bank secured against his property. The wife’s mother subsequently gifted the $100,000.00 to the wife.
·During the period of cohabitation the wife earned an income as she has asserted in exhibit “W3”. I accept she contributed her income to the family expenses and purposes during cohabitation and since.

Non-Financial Contributions during Cohabitation

I find the wife made the following non financial contributions during the period from the beginning of 1984 until final separation in August 2004.
·When the husband travelled overseas without the wife she managed the parties’ assets and businesses in his absence. This largely related to the farming business.
·Prior to the birth of the children the wife was more actively involved in the farming business. This included mustering cattle, checking fences, working in the cattle yards, typing of some letters for the husband (this became more involved when the parties acquired a computer), helping pull tractors out of bogs and helping deliver calves. The wife also made trips to Town 8 and Town 3 as required. The trip to Town 8 was once per week.
·After the children were born the wife participated in the above activities to a lesser extent.
·The wife accompanied the husband when he was inspecting the land which comprised the H Property purchase. She also delivered food and other items to the husband and workman on site at the H Property.
·The wife took phone calls for the husband in relation to several of the developments. There was no mobile phone service at the time.
·The wife did many hours of research, toured sport facilities and otherwise had input with the husband to the design and establishment of the Sport Resort. This also included research and input to the restaurant proposed for the site.
·The wife was the assistant manager of the Sport Resort in 2004 and filled in for the managers when they were on holiday or not working while having a two day break each week. This involved long hours particularly in the winter. The wife gave specific details on her duties in paragraph 53 of her affidavit. It is clear that her work was extensive.
·The wife provided advice to the husband, at his invitation, about the plans for the development of Caravan Park 1.
·The wife travelled to Town 9 at the request of the husband to choose fittings for the new building at Caravan Park 1. She also visited the site during construction at the invitation of the husband and gave advice as he requested her input. She hand painted a sign to hang outside the restaurant at Caravan Park 1.
·In relation to the building of the house on Town 2 Farm, the wife moved in and commenced living with the husband when the new house, being constructed on the property, was at the lock up stage. The wife assisted where she could. She prepared meals for the tradesmen. She swept and removed debris, cleaned windows, painted barge boards and exposed beams, stained doors, selected tiles and fittings and assisted in the design and placement of fittings. She cleaned the grout in the new bathrooms and toilets, spa and sauna. She cleaned cement from floor tiles. She sanded timber and painted the fireplace and doors. She made curtains for the windows. She chose tiles and light fittings and gave input as to where electrical power points would be sited. She also had input into paint colours and other decorating matters. She lifted objects such as furniture and firewood. She collected firewood daily. She monitored the spa and monitored the chemicals in the swimming pool while it was operational. She prepared and laid lawn seed, undertook mowing, weeding, planting, mulching and watering of plants and installed and maintained a drip spray watering system in the garden.
·The wife made two lots of curtains for “[Building 1]”. Whilst that building was being built by the husband she transported building materials to the site over very difficult terrain in a four wheel drive vehicle. She helped load and unload items from the four wheel drive. She cleared bush from immediately around the building as bushfire protection.
·In relation to the husband’s proposed Town 5 development, the wife assisted by taking telephone calls, helping with paper work and liaising with professionals.
·The wife prepared food and otherwise entertained the husband’s business client’s including an engineer, a tractor mechanic, a bull dozer operator and other business client’s associated with the husband’s business interests and proposals.
·The wife assisted the husband in entertaining members of his family from overseas and several of his friends who visited the parties during the course of the cohabitation.
·The wife monitored stock which entailed many hours of walking over steep terrain. She also wrote up the 100 plus double-sided cattle tags every year and periodically replaced them. She rode on horseback and mustered cattle. She checked fences and water. She attended to the horses used for mustering. She assisted with calving and hand raised some calves.
·The wife exercised the working dogs in the husband’s absence and searched for dogs when they went missing. She responded to calls when the parties’ cattle escaped onto public roads which sometimes involved her travelling between 13 and 20 kilometres to the place where the cattle had escaped. She assisted when the cattle were mustered for the purpose of yarding and sorting.
I find the husband made the following non financial contributions during the period from the beginning of 1984 until final separation in August 2004.
·Following the purchase of the H Property the husband and P Finton developed that property and renovated the farmhouse. Both worked long hours during that period.
·At the time the parties commenced their cohabitation I accept the husband was still working on developing Caravan Park 1. That was eventually sold to his son M in November 1991. Between the date of cohabitation and the sale of that property I accept that the husband worked on developing the restaurant area on the property. I accept that the balance of the development works had been completed before cohabitation. The caravan park was completed in 1985. The husband helped out with bookwork for the caravan park between 1984 and 1989. He also assisted with maintenance when required. He assisted M with the boilers, sewers/water pumps and electricity and handling contracts for the operation of the park. The husband acknowledged that when the caravan park was sold to M there was a discount which was in the nature of a gift to M for his work contributing to the development of the caravan park.
·Throughout the marriage the husband cared for the land at Town 2 Farm and maintained the fences and shedding. The husband did cattle mustering work with the assistance of his son P Finton. The husband built the outstation building known as “[Building 1]” in 1987. The husband planted trees, improved fencing and roads and established and cleared pasture to create more grazing land for the cattle. He built and maintained fencing and erected yards and sheds.
·In about 2003 the husband built a set of stables with storage facilities.
·As referred to earlier the husband owned an interest in Property 1 at the time of the commencement of cohabitation. During the course of the marriage the husband undertook maintenance of Property 1. This included replacing roofing, repairing and replacing rafters and intermittent painting both inside and outside. The husband managed the day to day running of Property 1. He worked together with management staff. He established suppliers, paid all the outgoings, negotiated with the relevant government agency in relation to their charges, attended to the issuing of licences for sport vehicles, obtained permits and supervised accounting matters. In the off season he organised brochures and tariffs in preparation for the following sport season. He over saw the promotional activities. During the off season the husband arranged the ongoing maintenance of the buildings and equipment. He employed staff for that purpose. He employed staff for the sport season. He also calculated a budget for the business.
·In relation to the Sport Resort the husband designed the floor plan for the resort and accommodation. He did that with the assistance of architects. The husband worked on obtaining approval for the development. The development took almost 6 years to complete.
·The husband took a special trip to European Country 1 before embarking on the construction of the complex. The husband proposed modelling the resort on facilities in European Country 1.
·The husband coordinated and facilitated compliance with numerous conditions that needed to be met by council for their approval. There were also conditions required by the Road and Traffic Authority, Fire regulations, water and sewerage regulations and disability access and liquor licensing. The husband oversaw the building works and trades people. In relation to the Accommodation Complex the husband undertook building work on that development. The husband was overall responsible for the building work on the resort. Between 2004 and 2008 the husband supervised the running of the resort as well as implementing the second stage of development. He planned with P Finton, the promotional aspects of the resort. He worked out tariffs and how to attract more customers. He worked on maintaining the resort. The husband helped with the bookwork and the payment of outgoings. He liaised with the accountant and relevant authorities such as insurance agencies and the council. Between 2004 and 2008 the husband spread his time about evenly between the management of the Sport Resort, the Town 2 Farm and Property 1.
·In relation to the maintenance and working of the Town 2 Farm during cohabitation the husband fixed and replaced fences as required. There is approximately 20 kilometres of fencing around the property. The husband managed the farm including the calving, animal husbandry, mustering and sorting of cattle. He searched for lost cattle on horseback. He worked on pasture improvement. He built sheds, took care of trees, and planted new trees including windbreaks.
·The husband carried out with the assistance of tradesmen the construction of the buildings, sports storage areas and accommodation for the Sport Resort. He also installed sewerage tanks, lines, water lines, water tanks, dug out dams, constructed fences, the indoor sport area and outdoor sport areas.
·The husband did a considerable amount of the building work on the homestead built on the Town 2 Farm. This home comprised 5 bedrooms, two offices, sauna, spa, large lounge area and 4 bathrooms. When the wife commenced living with the husband the house on the Town 2 Farm was at “lock-up stage”.
·The husband and P Finton carried out work on H Property renovating the farm house, repairing fences and building stock numbers. This involved long hours of work. The property was divided into 8 blocks and sold. In recognition of P Finton’s effort on this property the husband transferred the property at Section 1 to P Finton in November 1995.
·The husband worked on a proposal to convert the headland blocks of land in Town 5 into resort type accommodation. After endeavouring to gain approval without success the husband sold that land and developed the Sport Resort.
·The husband undertook repairs and maintenance in respect of the home of things such as the water and sewerage system, electricity and telephone lines.

Homemaker and Parent Contributions

I find the wife made the following contributions as homemaker and parent:
·When the children were sick and required medical attention the wife took them for that attention. This included trips to Sydney as well as Town 8 and Town 9.
·The wife performed the majority of parenting tasks associated with the children. Between 1996 and 1997 the children attended Town 4 Public School and had to be driven 30 kilometres to school and home. The wife undertook the travelling. There were additional activities which required further travelling. During the 1997 separation the children attended Town 3 Public School and the wife was responsible for travelling 300 kilometres per week in association with the children’s schooling.
·Between 1997 and 2000 the children attended Private School 1. The wife travelled about 600 kilometres per week to take the children to school and collect them in the afternoon. There was also an additional 120 kilometres per week associated with attending after school activities.
·In August 2003 the wife commenced home schooling the children through a distance education program. During a period of separation the wife had endeavoured to find suitable schools for the children. I accept that undertaking home schooling cast a very significant onus on the wife. The wife drove the children to school camps and study periods. On some occasions this involved travelling 3.5 hours and staying overnight.
·The wife acknowledged that when the children were little the husband would sometimes take them to Town 8 with him or the shed on the Town 2 Farm property or around the property. She acknowledged that he took them with him to “[Building 1]”. She was critical of his care of the children in that she asserted that he did not exercise sufficient supervision. She acknowledged that he did attend some school concerts and he built swings for the children and a cubby house.
The husband acknowledged that his working on the various enterprises owned by the parties during the cohabitation limited his ability for a hands-on caring role with the children. He asserted, however, and I accept that he did have some involvement in the care of the children. His involvement with the children largely orientated around meal times, weekends and holidays. He sometimes skied with the children during school holidays whilst he was managing Property 1. He attended special school events such as parent teacher night, school concerts and sporting events. The husband taught the children how to survive in the bush and how to do business when they got older. When younger he helped with school work as he could, however, this was limited given that English was not his first language. He involved the children, when he could, in participating with him in skiing and diving.

Post-Separation Contributions

I find the wife has made the following contributions post separation:
·Following the separation, the wife and children lived for 2 years at Sydney Suburb 3 in the wife’s mother’s residence, rent free. During this period the wife continued to home school the children.
·Income earned by the wife post separation was applied to support of the children and her. The wife acknowledges that the husband paid child support.
·B concluded his homeschooling in February 2006 and C concluded her home schooling at the end of 2007.
·In February 2007 the wife moved herself and the children back to Town 7 and reoccupied her property.
·I accept that each of the children have required additional financial support and non-financial support from the wife following their conclusion of their home schooling and that the wife has provided that support.
·The wife acknowledges that between July 2007 and January 2008 B worked in the Sport Resort. He then returned to live with the wife at Town 7. She assisted him in obtaining employment. She assisted him by paying his expenses. The wife supported B in 2009 as he undertook further education. She supplied him with the use of her motor vehicle and met his travelling expenses. B is currently in employment but lives with the wife.
·C left Town 7 in April 2008 and obtained employment in Sydney. The wife has assisted her with financial support. The wife has assisted by paying for further education for C. In late 2008 the wife purchased a car costing $10,500.00 for C so that she could undertake employment. Between December 2009 and March 2010 the wife supported C as she was without employment. In 2010 the wife paid for further education for C. She also assisted her with her entry in a national modelling competition.
·The wife provided housing for herself and the children in Sydney from January 2005. This was provided free of charge as a gift from the wife’s mother until the wife and children were able to move to the wife’s Town 7 home 18 months later.
·On 16 October 2007 the wife sold her interest in the Sydney Suburb 1 property. (The whole property was sold). The wife received $248,175.00. She applied those funds together with the funds she received from the sale of the Sydney Suburb 3 property as she has set out in paragraph 126 of her affidavit. I accept she applied her funds in that fashion and this included support for herself and the children.
·On or about February 2010 the wife received the sum of $259,138.00. She applied those funds as set out in paragraph 126 of her affidavit. This included the support of the adult children of the parties and the support of herself.
I find the husband has made the following contributions post separation:
·In September 2002 the husband borrowed $300,000.00 secured against the Accommodation Complex which was provided to the wife so that she could acquire the Town 7 property. That loan is still secured against the Accommodation Complex.
·The husband has met the monthly payments on the $300,000.00 borrowing from the National Australia Bank to fund the purchase of the wife’s Town 7 property in September 2002.
·In August 2006 the husband owned a one third interest in Property 1. In 2006 Mr and Ms Q purchased a one half interest in Property 1 for $1.2 million. The husband acquired part of the interest of Mr U so that he held a one half share. In order to do that he borrowed $400,000.00 from Mr U which he has now repaid $100,000.00 and paid interest. There is still $300,000.00 owing. The husband has met the interest payments on the loan.
·In early 2007 the husband offered B a business opportunity with the Sport Resort. He paid for B to attend a Restaurant Licensee Course at TAFE. He mentored him in the role he hoped he would take on with the business. He provided him with a car and taught him to drive including the paying of driving lessons over a 3 month period from September 2007.
·The husband has maintained and managed the farming property and all of his assets post separation. This includes the Sport Resort and Property 1. The husband has worked between 50 and 70 hours per week.
·The husband paid child support pursuant to child support assessments for the children until they each obtained 18 years of age. He paid money towards the removal of trees from the wife’s property and drainage of water supply. He continued to pay medical expenses for the children, dental costs and private health insurance.
·The husband replaced furniture in the house as the wife had removed items which she took with her at separation.
·The husband visited the children at Town 7 and at a later time met them in Town 9 for meals or coffee from time to time. The husband has not seen B since the end of 2007. He last saw C in Sydney in August 2010.

Assessment of the Section 79(4) Contributions

The wife acknowledges that the husband’s initial contributions were significantly greater than hers. In her submissions she acknowledges that by submitting that the husband’s contributions should be assessed to be between 5% and 7.5% more than that of the wife. It was submitted that the husband should be assessed to have made 55% and 57.5% of the relevant contributions. It was submitted that the wife should be found to have contributed 42.5% to 45% of the contributions.
The husband did himself a great injustice by failing to be legally represented at the hearing. There are aspects of his evidence which are unclear and which would not have been expected to be the case had he been so represented. I am satisfied that the wife has exaggerated the extent of her contribution when compared to that of the husband. Having said that I am satisfied that the wife made a very significant contribution. I accept the wife’s submission that each of the parties worked very hard during the course of their marriage.

The wealth of the parties is now reflected in the current balance sheet which again largely reflects assets brought into the marriage by the husband or subsequently acquired with the proceeds of assets brought into the marriage by the husband. In my view a significant weighting does need to be made in favour of the husband albeit that there was a lengthy period of cohabitation between the parties and a continued level of contribution by the parties post separation. I conclude that the contribution should favour the husband in proportion 60% to the husband and 40% to the wife.

Section 75(2) Matters

The Wife’s Section 75(2) Adjustments

The wife is 53 years of age. She continues to provide support to the children of the marriage notwithstanding they are now adults. B still resides with her. The children do not appear to have an ongoing close relationship with their father and accordingly are more likely to call on their mother for assistance in the future should that be required.
The wife has for many years suffered from low back pain and stiffness in her joints particularly in the hips and elbows. The wife had a knee replacement operation in August 1994 and she experiences intermittent problems with her knees. She also suffers from headaches, anxiety and insomnia. She currently takes 7 medications some of which are prescribed.
In August 2007 the wife was referred to Mr E, a psychologist. She saw him at regular intervals for treatment during 2008 and 2009. She saw him on one occasion in 2010. Her ability to continue to attend upon him has been hampered by the fact that B has the use of her motor vehicle.
In December 2010 the wife suffered a phenomenon whereby the vision in her right eye was reduced by about 70%. She sought treatment at Hospital 1. On 26 December 2010 the wife was again hospitalised at Hospital 2.
Between paragraphs 135 and 149 of the wife’s affidavit there is a heading “Husband’s Conduct”. I was informed by the wife’s counsel that the wife was not conducting a case which relied upon the decision in Kennon & Kennon (1997) 139 FLR 118. That is, there would be no submission made by the wife that her contributions were made more onerous to provide by dint of the husbands’ behaviour. It was submitted that the material was included only for the purpose of illustrating the background to the conditional anxiety which the wife says she now suffers.
Apart from a period during 2006 when the wife worked in Sydney she has not been in paid employment outside of the home since the commencement of her relationship with the husband. I accept that she does not have skills in the technological area and would only be employable as an unskilled worker. I also accept that the wife would not be capable of doing heavy physical work. I do accept that she is able to run her lodging business. I accept that at this time the wife does have low self esteem and has no confidence that she would be able to hold down a job.
The wife relied upon the evidence of Mr E. That evidence was unchallenged by the husband. Mr E is treating the wife for the symptoms of post traumatic stress disorder. Those include insomnia, depression, hyper vigilance, disturbed sleep and anxiety. He stated the wife needs to continue psychotherapy for at least the next 12 months (from 21 March 2011). The cost is $5,720.00.
The wife has a further liability for legal costs as disclosed in exhibit “W11” estimated at $50,000.00.

The Husband’s Section 75(2) Adjustments

The husband is 79 years of age. Although apparently being fit and healthy his age and condition must restrict the physical work he can engage in. The husband is hearing impaired and required the use of special technology in the court to be able to hear what was said. Even with such technology it was obvious from time to time that he did not hear all that was said.
He annexed a letter from his doctor dated 1 March 2011. This recited some history including that his blood pressure is now controlled by medication. He has middle range diabetes 2 which is controlled by diet and diabetic medications. He has arthritis in his hips, knees and elbows. He now takes medication in relation to those ailments. His doctor is of the opinion that the husband’s capacity to undertake hard physical work is well diminished.
The husband does not have benefit of superannuation entitlements nor is he currently eligible for a pension.
In his oral evidence the husband was asked by me about some of the entries in his Financial Statement which he relied upon for the hearing. As stated earlier the husband represented himself in this hearing and for much of the time in the lead up to the final hearing. There were aspects of his expenses which he detailed under the heading “Personal Expenditure” on page 5 of the document, which in my mind raised concerns as to how the amounts set out were calculated by the husband in the preparation of the document. In his oral evidence he explained that in relation to all the figures set out he calculated the total amount of the debt and then divided it by 52. That provided an understandable result in relation to items 26 and 2, however, it created a distorted view in relation to item 29. In relation to his loan from Mr U he said he added all outstanding capital (about $300,000.00) and outstanding interest (about $24,000.00). It is clear that he is not paying weekly instalments although he said he had paid the interest for the last 2 years on the outstanding balance when the sport season ended and he received a dividend from Property 1.
In relation to the entry “Brother & [sport] Friend E$1,000” the husband said he had borrowed $30,000.00 from a sport friend to pay legal fees to his solicitor and he still owed the solicitor $20,000.00. He put those two sums together and divided by 52.
The entry “ANZ [Town 8], overdraft regarding farm” he treated in a similar manner. He divided the total of the indebtedness by 52. His overdraft limit is $20,000.00 and the account stands at that limit. He is awaiting the proceeds from the recent sale of stock.

Other Section 75(2) Matters

I take into account here the following funds received by the parties post separation and not included by me in the balance sheet. I note the husband has not accounted, in any detailed manner, for the use of the funds received by him from the sale of the Town 5 property, however the wife does not seek to have those funds added to the balance sheet as a notional asset. I do accept that the husband has used the funds to either further grow his assets or to support himself.
·The wife received the sum of $248,175.00 from the sale of her property at Sydney Suburb 1, in 2004.
·The wife received the sum of $259,138.00 from the sale of her property at Sydney Suburb 3 in 2010.
·The husband received the sum of $785,000.00 from the sale of the Town 5 land in 2004.
Exhibit “X3” contained a number of items under the heading “Addbacks”. I have excluded items 30 to 34 inclusive from the final balance sheet. That represented $42,609.00 of assets which the husband was given an opportunity to provide evidence illustrating how those assets were expended by him. He failed to give any explanation although in submissions he claimed to have adequate explanations and that he was unaware he had to provide explanations to the court. I take into account that the husband may have adequate and proper explanations for the expenditure of the funds which would see the court not include the items in a balance sheet.
The wife has a small superannuation benefit which has not been included in the balance sheet by me.
The division of assets between the parties based upon assessment of contribution sees the husband retain $2,934,836.00 worth of net assets and the wife retain $1,956,557.00 in net assets. The disparity is $978,279.00.

Assessment of the Section 75(2) Matters

I agree with the submissions of the wife that the area of adjustment which will attract the greatest attention is the age and state of health of the parties and their ability to engage in income producing activity in the future together with the disparity between the parties relative financial position given the findings of the court based on assessment of contribution.
I also need to take in to account the following matters.
I consider that it is appropriate to make an adjustment in favour of the wife under s 75(2). The husband still has the capacity to earn an income through his business enterprises and the obvious business acumen which he has been able to exercise throughout his life. The wife acknowledged in submissions that the husband’s business acumen had given rise to the bulk of the parties’ wealth as demonstrated by the balance sheet. Cleary some of the wealth will need to be liquidated or used as security for borrowings in order to transfer assets to the wife so that the orders of the court will be satisfied. Any diminution in his assets is likely to lead to a loss of income or any borrowings to pay to the wife will lead to greater expense on the husband’s part and therefore diminish funds which will be available to him for his support.
I need to consider the impact of the husband’s age on his continued ability to operate his businesses which require a significant amount of physical input. This is particularly so with the farming business, the maintenance of Property 1, the Sport Resort and the Accommodation Complex. As his ability to perform those tasks diminishes he will need to employ others to do that work.
The wife submitted that if the wife’s contribution based entitlement was found to be 45% or greater then an adjustment in her favour of 2.5% would be appropriate. If the contribution based entitlement of the wife was less than 45% then it was submitted that an adjustment of 5% would be appropriate.
I consider that the adjustment in favour of the wife should be 2.5%.

The Overall Division of the Assets

The above determination will see the wife receive 42.5% of the parties’ net assets and the husband receive 57.5%.

The Just and Equitable Requirement

The division of assets would see the wife receive $2,078,842.00 worth of net assets and the husband receive $2,812,552.00.
In the circumstances of this case, I determine that result to be just and equitable.
I think it is important to note that it is very likely that, had the husband been legally represented at the trial, the final division would have been more generous to him. Significant disadvantage probably flowed to the husband in the area of the addition of add backs to the balance sheet and also because the husband’s obligation under the deed of settlement between himself and his son, P Finton was not tendered to the court.
This is a case where the balance sheet illustrates net assets of nearly $5 million. It is not a case where the court would understand a party could not afford to engage legal representatives. There is jurisprudence in this court and in other binding or persuasive authority to guide a court’s ability to assist a litigant such as the husband in circumstances such as this case. That does not extend to authorising the court to run a party’s case for him or her.

The Orders to be Made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	Value ($)
S Street, Town 7	575,000.00
2000 Mitsubishi	10,000.00
Horse Float	800.00
Balance of Bank Account (W4)	18,840.00
Payment from Husband	1,474,202.00
Total Assets	2,078,842.00

The wife has no liabilities in the balance sheet. She has a small amount of superannuation which has not been included in the balance sheet.
The husband will receive:

Assets	Value ($)
Town 2 Farm	1,100,000.00
Sport Resort	1,800,000.00
Lot …, DP …, K Street, Town 3	250,000.00
Property 1, Town 1	373,000.00
Lot … DP …	320,000.00
H Street, Town 3	150,000.00
Accommodation Complex Lot … DP …	510,000.00
Livestock	20,000.00
Porsche	60,000.00
VW Golf	14,000.00
Machinery & Tools	4,200.00
ANZ Cash Management …	NIL
NAB Cash Management …	1,087.00
Loan H Finton Family Trust	68,000.00
Loan H Finton Pty Limited	94,856.00
ANZ V2 …	Not included
ANZ …	Not included
Total Assets	4,765,143.00

Add Backs
ANZ Term Deposit	103,226.00
ANZ V2 …	5,860.00
Total Add Backs	109,086.00
Total Assets and Add Backs	4,874,229.00
Liabilities
ANZ Access Advantage …	19,475.00
NAB Mortgage on Accommodation Complex	268,000.00
Loan to Mr U regarding Property 1	300,000.00
Total Liabilities	587,475.00
Less Payment to the Wife	1,474,202.00
NET ASSETS	2,812,552.00

The orders of the court will provide for the husband to pay the wife the sum of $1,474,202.00. The wife in her further amended application for final orders sought that the husband make a payment of $250,000.00 within 6 weeks and the balance within 4 months.
The husband has no cash reserves of any consequence. He made it clear in his evidence that he would have to borrow to pay out the wife. He already has borrowings of $300,000.00 to one creditor and $268,000.00 to the National Australia Bank for the money used to purchase the wife’s property at Town 7. I consider it will take him some time to seek out finance to pay out the wife if such finance is available. I propose to give him 4 months to make the payment on an interest free basis. I propose to give him a further 2 months subject to interest and then require that he sell assets to meet the payment to the wife. If at any time prior to the completion of sales the husband is able to pay to the wife all of the capital and interest which is owing to her pursuant to the orders of the court then the sale of his assets can cease.
Experience tells that this case has all the hallmarks of taking a considerable amount of time to complete the payments to the wife if the husband is unable to borrow the money to satisfy the orders. There is no evidence as to the husband’s ability to borrow the money required to be paid to the wife. Given his age and the amount of the borrowing required there must be some doubt about a financier agreeing to lend him the funds.
The wife seeks as an enforcement provision in the orders of the court that she be appointed as trustee for sale of the husband’s assets. I would not make such an order at this time. In the future, however, the husband must be on notice that if he is not taking all reasonable steps to satisfy the court orders that is an option the court would have to consider.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 27 May 2011