Foster & Foster

[2007] FamCA 817

FAMILY COURT OF AUSTRALIA

FOSTER & FOSTER [2007] FamCA 817

FAMILY LAW - Property settlement – Long marriage

Family Law Act 1975 (Cth)

Ferraro and Ferraro (1992) 111 FLR 124; 16 Fam LR 1; (1993) FLC 92-335;
Hickey and Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; 30 Fam LR 355;
Todd v Todd (No 2) (1976) 1 Fam LR 11,186; (1976) FLC 92-008;
Mallett [see Gibbs CJ at 610 and Deane J at 639-41];

APPLICANT: Mrs Foster

RESPONDENT: Mr Foster

FILE NUMBER: SYF 4124 of 2004

DATE DELIVERED: 24 July 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 21, 22, 23, 24 May &
6 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT: Mr Hallen SC with Ms Haughton

SOLICITOR FOR THE RESPONDENT: Wilkinson Throsby & Edwards

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4124  of 2004

Mrs Foster

Applicant

And

Mr Foster

Respondent

REASONS FOR JUDGMENT

Proceedings

1. Proceedings for property settlement were instituted by Mrs Foster on 14 October 2004 against her husband, Mr Foster.  In the course of those proceedings their son and daughter-in-law intervened and sought various orders it is not now necessary to repeat.  Suffice to say their position was supported by the wife and opposed by the husband.  But on the morning of the first day of the final hearing the Intervenors [by then separated and separately represented] consented to orders providing for the dismissal of their application and for each party to pay their own costs.  Neither of the Intervenors took any further part in the proceedings, including as witnesses.  At one point counsel for the husband made an oral application for third party production of documents, to which the son was the respondent, but in the time he was given to seek advice the issue was resolved by agreement and adjudication became unnecessary. 

2. The parties’ major assets are jointly owned realty located at a rural town in southern New South Wales and it will be convenient to identify that now and relate briefly some of the information about it before outlining what each seeks to achieve from the litigation and the relevant background facts.  All the land has been valued by Mr L, engaged as a single expert, and there is no dispute about the opinions he gave. 

   (i)There is vacant land with a total area of 12.14 hectares [[E] Street] less than two kilometres from the […] town centre.  It will be referred to as ‘Lot 5’.  It is zoned Rural 1(c) which permits a minimum lot size of 4 hectares for subdivision.  There is a proposal by [the wife] to sub-divide the land into three blocks. 

   (ii)They also own a property known as ‘[R] [in S] Street] adjoining Lot 5.  There is a substantial three storey residence on the property, more particularly described in Mr [L]’s report.  This has been the parties’ home since 1967 and both continue to live there despite their separation.  The residence requires repairs and maintenance.  There is another building located on the property, referred to as the ‘[H] House’.  This is a two storey timber building which has undergone renovations in recent years, but it is uninhabitable at present and requires major work to complete it.  There is a proposal by [the wife] to develop it into two units to be let in the short term holiday market. 

   (iii)The third property is known as the ‘[T] House’ [[in S] Street].  It consists of a total area of 3,484 square metres and is zoned Residential 2(a1).  Erected on it is a new single storey residence that has been constructed after the removal of an old cottage.  Other improvements, described more particularly by Mr [L], include a detached double brick garage, an in-ground swimming pool, and a garage for machinery storage.  The landscaping has not been completed.  There is also land at the back of the house block [the [T] House back block] which could be accessed by construction of a right of way along the boundary – a task that would take about six weeks and $5,000 according to [the wife] – and it is common ground that with that work done, along with some relatively minor work on the [T] House to finish it off, both the [T] House and the back block could be sold separately. 

Orders sought

1. The wife’s application remains as it was framed in her initial application.  Essentially, that is to have all of the realty transferred to her for payment to the husband of the sum of $885,000 within six months of the sub-division of Lot 5.  The form of orders she seeks is set out at the end of these Reasons in Schedule A. 

2. The husband filed a response on 1 November 2004.  He sought the sale of all the realty and equal distribution of the proceeds of sale after discharge of debt attaching to the properties.  His response outlined an alternative which would still see him entitled to one half of the value of their property but contemplated the wife acquiring his half share.  The particulars are set out in Schedule B.

3. At the end of the hearing an amended response was tendered on the husband’s behalf [exhibit 13].  That maintains the same essential requirement of equal distribution of their property to be achieved through a sale of all the realty.  However, again he proposes an opportunity to the wife to acquire his half interest in the realty.  The particular terms are quite lengthy and are more conveniently set out in full in Schedule C. 

Approach

1. Section 79 of the Act requires the Court to be satisfied that it is just and equitable in all the circumstances to make an order altering the interests of parties in property.  The approach to that is well established from a line of appellate authorities [eg. Ferraro and Ferraro (1992) 111 FLR 124; 16 Fam LR 1; (1993) FLC 92-335 and Hickey and Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; 30 Fam LR 355]. Generally, it is first necessary to determine the nature and value of the parties’ property; the parties’ contributions, as defined in s 79(4)(a)-(c), are to be evaluated; consideration is then to be given to any adjustment to that evaluation by reason of any relevant factors under s 75(2); and finally it is necessary to review the result by reference to the requirement that the outcome be just and equitable.

Evidence

1. What would bring about a just and equitable result is obviously in contest, but the evidence reveals the parties to have different recollections or interpretations of the history they have shared and there is contention about the reliability of the versions given.  That said, there is a deal of common ground, either by reason of the uncontroverted evidence, by documents made available at the hearing, or by an agreed written statement of facts related to certain property transactions.  The last of these was submitted by their legal representatives at my request after the close of hearing [now with the record and marked exhibit 14] when, in the process of preparing judgment, I considered it prudent to have unresolved questions about certain transactions clarified because the evidence differed in ways not easy to reconcile or was silent.  Remaining areas of dispute regrettably make reliability an issue and there have been submissions about that. 

2. It is understandable that after such a long marriage there might be gaps in recollection of past events.  Certainly the husband was vague or uncertain about various aspects of the history and he was wrong about or did not know others.  The wife’s recollection of history was better, though not flawless, as comparison with public records and documents demonstrate.  None of this is surprising after the many years since some of the events occurred.  It is also understandable that objectivity might have become blunted after a long period of unhappiness lived in close quarters.  The difficulty with diminished objectivity, however, is that it can lead to a tendency to underrate or negate the role or efforts made by the other while elevating their own.  That does not mean there is dishonesty at work or there is necessarily a deliberate attempt to mislead or obfuscate, but it does mean some vigilance is necessary in the evaluation of that party’s case. 

3. Despite the shortcomings in the husband’s evidence there was a certain directness or candour to it, most tellingly apparent in the simple and ready concessions he made when asked about a contribution of one kind or another made by his wife over the years.  This stands somewhat in contrast to the case the wife presented.  Mr Hallen SC made submissions about aspects of her evidence and in my opinion the points he made are sound.  For example, I agree her evidence in chief gave an exaggerated picture of the husband’s supposed shortcomings by her references to his ‘fondness’ for gambling or spending money on Lotto tickets when, as it transpired, she conceded under cross-examination it was a form of entertainment for him.  Sensibly, with respect, the line was not followed up with him.  If the passages were intended to convey an impression of waste of some kind, then it was unsupported when pursued. 

4. A reading of other aspects of her evidence in chief did not reflect recognition of important contributions the husband had made.  A more balanced picture emerged after concessions were sought and given by the wife in cross-examination.  One example is the use made in recent years of the substantial funds borrowed which the husband is jointly liable to repay though not all of it has been spent on developing property he jointly owns or meeting debts for which he had any responsibility.  Other aspects of the wife’s evidence indicated she had information concerning their jointly owned property and had not shared it with the husband for his consideration in weighing his entitlements and options.  This includes discussions she had with a developer about Lot 5 and what might be anticipated from a sale of the separate blocks if subdivided and the price they might expect to receive from a sale of the T House back block if a right of way were created at minimal cost within a short period.  The wife’s case has to be evaluated in this light. 

5. In the account of the background to follow, statements of fact are to be construed as findings of fact except if indicated otherwise and where I consider it necessary to make a finding about a dispute, it will be made in its chronological context. 

Background

1. The husband is presently aged 86 years [born July 1921] and the wife is aged almost 74 years [born September 1933].  They married in the town on 31 October 1959.  They have two children: a son [now aged 46 years - born in September 1960] and a daughter [now aged 45 years - born in November 1961]. 

2. It is common ground they ceased to occupy the same bedroom around 1989 and both have continued to live at R property to this day.  The development in their relationship in 1989 raises the question of when it can be said they separated, which is perhaps not surprising from a lay perspective, but the case law is reasonably clear about it.  Senior counsel for the husband cited Todd v Todd (No 2) (1976) 1 Fam LR 11,186; (1976) FLC 92-008 in his submission on the topic and that is a sound source of principle. As noted by Watson J, separation involves the destruction of the marital relationship - or the consortium vitae - and requires one or both spouses to form the intention to sever the marital relationship and to act on that intention.  What comprises the marital relationship may differ between couples because marriage involves many elements, some or all of which may be present in a particular marriage.  Whether there has been a separation will be a question of fact, therefore, to be determined in each case, usually by examining and contrasting the state of the marital relationship before and after the alleged separation.  As it happens, in this case the issue can be disposed of fairly easily because the evidence as a whole supports the finding the parties separated in or around early 2004; more particularly:

   ·In her affidavit sworn 6 July 2005 [para 2] the wife says ‘We have been separated for at least a year although we still both reside in the premises at [R property].  We ceased to occupy the same bedroom at least 1989 or sometime prior to 1989.’  This does not specifically assert a separation other than ‘at least a year’ before 6 July 2005.

   ·Her letter of 26 April 2004 [exhibit 4] would be contrary to an assertion that separation was at any time other than in 2004, a date she conceded in cross-examination to be their separation. 

   ·In his affidavit sworn 6 July 2005 the husband said they began sleeping in separate bedrooms in 1989 but he could not say whether this was when they separated or not ‘because we continued to go out socially together and we continued to share the homemaking and housekeeping duties.  We did not discuss separating or divorcing.’  His oral evidence that they ‘lived separate lives’ from 1989 does not alter that in any real way, more particularly as he was not questioned about the topic when the opportunity arose.  Shedding some light on his viewpoint is the letter from his solicitors to the wife on 22 April 2004 which said, amongst other things, ‘We understand that it is acknowledged that your marriage has broken down irretrievably and that there is no reasonable prospect of a resumption of co-habitation.’ 

   ·This accords generally with paragraph 2 of the wife’s affidavit and with her reply by letter of 26 April 2004. 

3. They have not divorced. 

4. When they married they were each employed.  The wife was working in the family business in the town and she received a share of the rent paid by the business for the premises owned by her and her brother, Mr J.  The husband was a tradesman and he was self employed as a contractor as well as owning and operating a retail outlet from premises he owned in the town. 

5. The wife worked until about three weeks before the birth of the son in September 1960.  She returned to the paid workforce in 1964 when she became the manager of her family business.  From 1970 she also did bookkeeping and typing for the husband’s businesses for which she received no actual payment.  She retired in 1997.  There is no suggestion she used the income she received over these years in any way other than for family purposes of one kind or another.  In 1997 she sold her interest in the business and the premises and her use of the proceeds will be referred to later. 

6. The husband operated his businesses through a company, F Pty Limited.  He says at least four builders for whom he did contract work over time went bankrupt and so his contracting business fell into difficulties at times because he had outlaid money to undertake the work involved in the belief, understandably, he would receive payment at a later date.  When the builders went broke he had to manage without the income from the jobs completed and at times it became difficult to make ends meet.  This is apparent from the writs registered against some of the properties he owned, amongst other indicators, and from the use to which the proceeds of sale of certain properties were put.  There were times, he readily concedes, when the wife contributed to the payment of business debts from funds in her control. 

7. The son worked in the business until about 1989.  That is when the son and his mother formed a company, U Pty Limited, of which they were the directors, they each held one ordinary share and the wife was the secretary.  The company began a trades business and the son took with him into the new business the majority of his father’s clients.  The husband, I accept, was unaware of his wife’s involvement in the son’s business until it later fell into financial difficulties. 

8. After the son’s departure the husband wound the business down and looked after the few remaining clients.  The Commonwealth Bank placed his business overdraft on a ‘reduction only’ facility.  He continued to work as a trades contractor until he retired in 1995 or thereabouts at the age of 74 years.  In the course of the marriage he operated another company, X Pty Limited, which was used to do work on real estate acquired over time. 

9. The husband says, and it is accepted, that the income earned from his businesses was used throughout the marriage to pay for business related expenses, to pay for the day to day living expenses of the family as a whole, and to assist in the costs of purchasing various chattels and real estate acquired jointly with his wife and improving assets acquired. 

10. When they married they both owned certain property.  The wife owned:

    (i)one third share in her family business in which she worked, the other owners being her father and her brother, Mr J; and

    (ii)a half interest with her brother, Mr J in a property at G Street, in the town [encumbered] which was leased to the business. 

11. The wife and her brother, Mr J, had acquired the property in 1958 from the husband for 4,500 pounds [exhibit 7] by borrowing 3,500 pounds from the bank.  She says, and it is accepted, she repaid her half of the debt within 4 years from her earnings.  She says the husband did not make any contribution to repayment of the debt, which will be taken to mean he made no direct financial contribution. 

12. The husband had acquired property well prior to the marriage and there were some dealings with that before the marriage in October 1959. 

13. In 1955 he purchased property consisting of Lots A, B and C at G Street, in the town for 13,000 pounds with vendor finance secured by mortgage.  In January 1958 he sold Lot B for 3,500 pounds [exhibit 7] and in April 1958 he sold Lot A to the wife and her brother for 4,500 pounds.  This left him with Lot C [the subject of mortgage in favour of A Company] which comprised two shops. 

14. In September 1957 he purchased 8 lots of land in M Street, in the town for 2,000 pounds.  He says one of the blocks had a house on it when he bought it and he later purchased and moved two houses on to two of the blocks and installed sewage, though it is not apparent when these events happened.  Records [exhibit 7] show, and it is agreed, that before the marriage he sold Lots 1, 3, 4, 7 and 8 for a total of 2,000 pounds, equivalent to the purchase price of all 8 Lots, and at the time of marriage he retained Lots 2, 5 and 6. 

15. In summary, when he married the husband owned:

    (i)Lot C located in G Street, in the town comprising two shops;

    (ii)Lots 2, 5 and 6 in M Street, in the town; and

    (iii)his retail business operated from G Street as well as a business as a contractor. 

16. The husband acquired another property in the town known as Q property.  It is agreed this occurred in December 1959, just after the marriage.  He describes Q property as comprising 13 acres with a home and other buildings constructed on it.  It became the subject of a registered mortgage in February 1960.  The husband says, and it is not disputed, he converted the buildings over time to flats and cottages by doing construction and renovation work himself.  He and the wife lived in one of the dwellings there after their marriage for about 4 years and then they lived in rented premises before moving to R property in the late 1960’s. 

17. After the marriage the husband dealt with the properties he had introduced at G Street and M Street and with Q property as follows:

    (a)In June 1963 he sold various Lots within Q property for 18,177 pounds.  In May 1967 later Lots were sold for $5,400.  No doubt related to the sales, mortgages were discharged in August 1963 and a later mortgage was discharged in June 1967.  There is no evidence of the amounts discharged or the equity retained. 

    (b)In November 1959 he sold Lot 2 in M Street for 3,000 pounds.  In July 1960 he repurchased Lots 3, 4 and 8.  Lots 5 and 6 were sold in a decade later in December 1969 for $24,000.  In the meantime, writs of fieri facias had issued in 1966 and 1969, there were mortgages granted in favour of W Company and the Commonwealth Trading Bank in 1968) and a series of caveats registered against the title. 

    (c)There was a further mortgage on Lot C in G Street in February 1961 and a writ of fieri facias issued in September 1966.  In August 1970 the property was sold for $43,500 by the mortgagee.  There is no indication what, if anything, he got out of the sale. 

1. When the G Street property was sold in August 1970 the husband says he purchased a property at …, a nearby town, where a retail business now stands for $15,000 and he then used the premises to operate his business.  He says he sold that property five years later for $87,000 to a developer who allowed him to remain there for another two years.  There is no indication from the evidence what happened to this money or whether there was any debt to be paid out of it. 

2. In 1966 and 1967 they acquired a large tract of adjoining land to the east of the town, described generally earlier.  The agreed background follows:

   (a)In April 1966 they purchased in their joint names properties referred to as R property, E Street and F Road as well as the block behind [Lot 1] for 5,500 pounds or $11,000.  Later, in 1972 there was a boundary change and some additional land was acquired at a cost of $1,500 which the wife paid from her savings. 

   (b)In 1967 they purchased the property referred to as the T House for $6,200 which came from a deposit of $1,200 and secured vendor’s finance of $5,000.  The wife says, and it is accepted, she made all repayments in on the mortgage which was discharged in 1969.  During these years, as writs and other developments reflect, the husband was in financial difficulties at times with his business. 

3. The residence on R property was in a poor state of repair and work was done to make it habitable before they moved to live there during 1967.  This work was done through the husband’s firm, X Pty Ltd, though no money was paid to the company.  The work was relatively extensive and some of the detail is given by the husband in his affidavit [paragraph 40].  It included installing a new kitchen and bathroom, roof repairs, replacing plumbing and guttering and flashing, replacing ceilings, rewiring the whole house and installing underground power to the house, repairing the septic system, painting inside and outside, installing heating, and undertaking considerable work in the grounds.  Later there was an earthquake which brought the ceilings down and he installed the ceilings again.  He also spent a lot of time searching for appropriate materials to ensure the renovations were in keeping with the house being listed with the National Trust and he used materials from houses he had demolished and renovations he had done in town.  It is the husband’s further evidence that he did considerable fencing on the property which took him three years in his spare time to complete.  His evidence about this work is accepted. 

4. After the purchase of the T House fairly extensive work was done on the residence.  The husband says, and it is accepted, that he installed a kitchen and bathroom, he renovated the two bedrooms, and enclosed the back verandah.  He put in a bay window and a verandah around part of the house, he installed a new laundry at the back, and he enclosed the back verandah.  He also relined the whole of the building and replaced most of the roof and gutters, rewired the house and installed a hot water service.  He was assisted by an employee and a friend who was a retired plumber.  The T House was rented when the work was completed.  In early 2003 the son and his wife moved in to the T House and they lived there rent free until fairly recently.  It is now vacant, as I understand it. 

5. The properties acquired were the subject of mortgages over the years to follow.  In 1972 the T House was mortgaged to raise $6,000 which was used to pay debts related to the husband’s business.  In 1973 $30,000 was borrowed on the security of the T House and used in part to discharge the earlier loan of $6,000.  There was a mortgage in favour of the Commonwealth Bank registered on the title of R property in 1983.  In December 1993 they borrowed $220,000 from Mercantile Mutual to pay out the debt to the Commonwealth Bank.  The wife paid the interest on the mortgage from the income she received from her family business until the debt was discharged in early 1997 in circumstances to be mentioned shortly. 

6. Both parties received inheritances over the years of their marriage.  The husband’s situation:

   (i)In 1976 he inherited a property in D Street, in the town, from Mr K.  He sold the property in 1979 for $29,000 and used the sale proceeds to discharge the mortgage debt secured against the T House at the time. 

   (ii)In July 1977 the husband’s father died and he inherited the family home at P Street, in the town.  His mother remained living in the home until her death in December 1984.  The following year the husband sold the home and he received $104,044 net.  He paid $81,872 towards business debt and the balance was spent on renovations to the R property. 

7. As for the wife:

   (i)Her mother died in 1983 and she inherited some jewellery and about $3,000 as well as the proceeds of a life policy of $7,124.  She put the money she received towards the cost of renovations or repairs to the R property.

   (ii)Her father died in 1987 and she and her brother received a share of the family business and a share of the family home at M Road, in town.  Several years later, in 1990, the home was sold to the parties’ son for $60,000.  The son did not pay his mother the $20,000 for her 1/3^rd interest.  When it was confirmed with the wife that she had not required the son to pay her for her share, she agreed she had not ‘at this stage’ adding ‘I have not asked for it’ and when asked whether it is proposed the son pay her, she said he would ‘when he could afford to but the time never comes’.  The son sold the home in November 1999 for $350,000.  She has never been paid anything for her interest. 

8. They both won lotteries at different times.  The husband won $5,832 in September 1994 and the wife $8,958 a few months later. 

9. In late 1996 the wife sold her interest in her family business and in the property in G Street for $439,000.  After accounting for receipt of her capital account she received all up $490,054.  From it she paid $224,847 to discharge the mortgage debt secured on R property, she paid $20,000 to an accountant to discharge an old debt, she paid $7,850 to the accountant for the husband’s company, and she invested the balance [on my calculation $237,357] into her superannuation fund.

10. At some point there was a decision to subdivide some of the land acquired in the mid-1960s.  The cost of the subdivision was $20,359 and paid by the wife, partly from the lottery winnings she had received.  Having completed the sub-division, they dealt with Lots 1 – 4 over time in these ways:

    ·in July 1998 they sold Lot 2 for $290,000;

    ·in November 1999 they transferred Lot 4 to the son and his wife for a nominal sum;

    ·in May 2000 they sold Lot 1 for $300,000; and

    ·in July 2000 they sold Lot 3 for $300,000.

11. As for the transfer of Lot 4 to the son and his wife, it is the wife’s evidence that the son agreed to pay them $180,000, being the Valuer-General’s value, ‘when they could pay’.  There is support for this from the husband’s evidence [paragraph 65] when he says he told the son before permitting the transfer ‘You have to pay the valuation as per the valuer generals value when you settle into the new house.  We need that money for our retirement.’  The husband says he was of the belief the son was going to build a house on the block.  That never happened and, despite having sold his grandfather’s home for $350,000 around the time of the transfer and later selling Lot 4 in January 2003 for $710,000, the agreed amount has never been paid. 

12. As for the other Lots sold, the proceeds of sale as they came in were distributed to one or the other for investment.  Putting Lot 4 aside and disregarding costs of sale, a total of $890,000 appears to have been received over the two year period between 1998 and 2000.  What happened to this money is not particularly clear.  As the husband puts it, the sale proceeds of Lots 1 and 2 were retained by the wife and he retained the proceeds of Lot 3.  The wife’s evidence, on the other hand, [paragraph 26] is not specific as to amounts: ‘..some of the proceeds of the sale were put in with my superannuation and invested in Flexi Plan and in June 2000 $259,982 was invested in the Husband’s name.’  Without nominating the amount put in to her superannuation and invested in Flexi Plan it is hard to be sure how much she retained overall.  It emerged in cross-examination, however, the sale proceeds of the Lots as well as her superannuation was the source of payment of legal costs related to the Supreme Court proceedings instigated against her and the son by the liquidator, ultimately settled in 2004, to be outlined shortly. 

13. Whatever the amounts paid in defending that litigation, it is common ground that in June 2000 the husband received the amount she nominated.  Over the next two years he operated that account and by February 2002 he retained around $243,000. 

14. In the meantime, there had been significant developments with the company owned by the wife and the son, U Pty Limited.  In August 200 a liquidator was appointed.  The following month the son formed another company, ST Pty Limited, of which he is the sole director and shareholder.  U Pty Limited was ultimately deregistered in mid 2005.  But in the intervening years and following the appointment of the liquidator there were a series of events related to the company’s financial difficulties, including court action by the liquidator against the wife and the son, necessitating their engagement of lawyers from whom they sought advice.  Against that general backdrop, there were decisions taken which effected the parties’ financial position significantly:

    (i)In February 2002 the husband withdrew $239,290 from his investment account into which some of the proceeds of sale of the land at F Road had been paid.  This was used to reduce debts owed by the son’s and the wife’s company and thus reduce their exposure in the liquidation.  The wife insisted it was a family decision to hand over the money, but she was bound to concede that the husband was not a director of the company, she agreed he was not associated with the company at all, and she also agreed that for the years between late 1989 and 1994 the business the company operated was in competition with the husband’s own business. 

    (ii)In January 2004 the sum of $404,500 was paid in part satisfaction of the liquidator’s claim against the wife and the son.  To make the payment, money was borrowed by the parties jointly against the security of R property.

    (iii)The Deed of Agreement with the liquidator required the son and his wife to pay $4,500 in three instalments, but this amount was also paid from funds borrowed jointly by the parties. 

    (iv)There was no mention of it in the affidavit material, but the wife said in cross-examination that legal fees related to the Supreme Court proceedings were paid from the sale proceeds of the Lots she retained and her superannuation.  It is not apparent how much was paid. 

15. Ignoring the legal costs, these payments mean the parties paid over $648,000 for the benefit of the son and the wife as directors of the company.  A large portion of that amount was borrowed and interest has been paid on the debt since it was borrowed in 2004. 

16. Some years ago a decision was taken to develop the jointly owned properties.  There is dispute about what was involved in the plan.  Nonetheless, it appears to have contemplated repair and improvement of the residence at R property; the H House was to be developed into a tourist facility; a home was to be constructed on the T House block; there would be a boundary adjustment between Lots 1 and 2 to allow for an increase in the size of Lot 1 to 4,000 m2; the T House back block could be subdivided from the front block with the construction of a road allowing right of way; and Lot 5 would be subdivided into 3 blocks by providing a private road accessed from S Street. 

17. Some of the work has been undertaken.  The work done by the son over the years is set out by the husband in his affidavit of 18 May 2006, which is accepted.  Not all of the work has been done with the husband’s agreement.  It is the wife’s case that he has been disruptive and interfered with the development work and she maintains he has alienated himself from the family.  There might be disagreement about the situation when put that way but there is no doubt he is alienated from the family, whatever the source of the problem.  It is also apparent he has been marginalised for some time in decisions about the development and his views either unheeded or not sought.  The removal of the cottage at the T House before construction of the new home, the removal of the orchard and the installation of a swimming pool there are examples. 

18. To fund the development – and to pay the amount agreed with the liquidator of U Pty Limited - money was borrowed in the joint names of the parties on the security of R property.  Initially this was $1.05 million in late 2003, there was a further $550,000 borrowed in early 2004, and in January 2006 there was a further advance of $450,000.  The debt is presently $2.05 million and there remains available at bank the sum of $117,831.  Interest amounts to more than $13,000 per month.  The debt is to be refinanced in January 2008.  The account has been controlled by the wife.  She agreed money had been advanced to the son or to his company from the funds and that she had not sought the husband’s consent to those transactions.  There will be reference shortly to these amounts when listing the parties’ current assets. 

19. The use to which the borrowed money has been put has never been set out in any comprehensive way as at the time of hearing.  The husband had his solicitors request details in 2005 and that produced a response from the wife’s solicitors dated 21 December 2005 which gave an account of outgoings as at 4 December 2005 [see annexure B10].  At that date borrowings were $1.6 million and $204,406 remained in the bank.  The wife reported total expenditure of $1,451,641 but that included $404,500 towards the liquidation of her and the son’s company, a hearing aid for the husband at a cost of $3,000, payment of their credit card debts totalling $12,779, legal fees for the wife [paid to her solicitors in this dispute, Mr Twigg’s firm] of $18,155, land tax of $8,469, property valuations of $7,725, ‘machinery at cost’ [no details given] of $29,992, and ‘Loan SCSp/l’ [which is a reference to [ST] Pty Limited, the son’s company formed after the appointment of the liquidator] of $97,009.  I accept that not all payments from the account were made after any consultation with the husband or with his prior approval.  Development work came to a halt, as I understand it, around April 2006. 

20. It was revealed in the course of the wife’s cross-examination that she had discussions with a developer about the sale of the three separate lots after subdivision of Lot 5, or the possibility of entering into a joint venture with the developer to complete the subdivision.  She believes each of the lots once subdivided would be worth about $750,000.  It was also revealed that the wife believes the T House back block, after completion of the right of way for $5,000, would be worth about $500,000 and she agreed that if permitted to complete the development there could be anticipated $950,000 for the T House and an additional $500,000 for the sale of the back block. 

21. At some time the husband sold a caravan for $1,000 and a motor vehicle for $6,300.  Another vehicle was sold for $8,200 and some antiques for $3,000.  This money was given to the wife. 

22. Following the separation the husband had no access to funds and the wife told him to use his credit card, which he did to pay for his day to day needs and to buy a motor vehicle for $11,200.  Since December 2005 he has received $600 per month from the wife towards his expenses but his credit card debt was $19,000 when this arrangement began and so much of the money received has been put towards repayment of that debt. 

23. Since these proceedings were instituted towards the end of 2004 there have been some interim orders.  On 1 November 2004 consent orders were made relating to the development proposal and there were further orders made on 24 March 2006 related to inspection of the H House by the husband and his solicitor and otherwise might be generally described as related to the development.  Around this time the husband took steps to sever the joint tenancy on the realty. 

24. On 16 April 2007 the wife transferred funds from the joint account to an account in her own name and not, as she had initially said, to another joint account.  She did so without informing the husband or his advisers.  Her action followed the husband’s stated intent to use funds in the account to pay his legal costs.  Despite her rejection of the proposition, it can be inferred from the timing and surrounding circumstances that the transfer was done to prevent the husband gaining access to the funds for that or any other purpose. 

25. It is accepted that the wife was the parent primarily responsible for the children’s care as they were growing up.  She was also responsible for the majority of the household chores such as cooking and cleaning, though she had some help with cleaning for a number of years earlier on and on odd occasions later.  She is a keen gardener and she designed and maintained the gardens, though a gardener was employed over the years on permanent/casual basis to assist and the husband did some of the heavy gardening work and lawn mowing while he was able prior to his car accident in 1996.  Support for her evidence about her role comes from an affidavit of their daughter who was not challenged. 

26. As well as the work he did in the garden, it is also accepted that the husband assisted with the care of the children at times and he did some of the cooking as well as assisting with preparation of some meals and barbeques and with some of the housework at times such as vacuuming and laundry and with cleaning up after meals.  His daughter’s affidavit focuses more on her mother’s input, but portrays him as having a minor role as homemaker and parent.  Even so, a reading of it does not exclude what her father describes as efforts he made on the domestic front at times. 

Assets and liabilities

1. Findings about the parties’ current assets and liabilities are set out below which I have organised into separate categories for convenience.  What those figures do not reflect is the opportunity for enhanced values if the development of Lot 5 and the creation of the separately saleable T House back block were to be completed.  Where commentary is necessary, it will follow by notation. 

   A. Joint

   1.R property – S Street, … –   2,750,000

   2.Household contents      167,670

   2,917,670

   3.Lot 5 – S Street, …              625,000

   4.T House – S Street, …              950,000

   4,492,670

   Less:

   5.Mortgage – S Street, …      2,050,000

   6.Land Tax  9,835

   7.Electricity account            310      2,060,145

   Sub-total [realty and contents less debts]:  2,432,525

   8.Commonwealth Bank  2,820

   9.National Australia Bank   117,831         120,651

   B. Assets – the wife to retain

   10.Bank account  74

   11.Subaru motor vehicle   11,000

   12.Jewellery  5,670

   13.legal fees paid   49,239

   14.Superannuation   327,960

   393,943
   Less

   15.Credit Card                 19,513

   16.Credit Card                  2,524   22,037         371,906

   C. Debts – The son/company

   17.ST P/L   97,009

   18.ST P/L   104,926

   19.The son – re machinery at cost   60,810

   20.The son – loan   34,100

   21.The son - loan re F Rd transfer                   180,000         476,845

D. Assets – the husband  to retain

22.Commonwealth Bank             1,943

23.legal fees paid   10,120

24.Subaru motor vehicle              2,000

14,063

Less

25.Credit Card   31,688   (17,625)

Overall total net assets:  3,384,302

1. There is contention about the inclusion in the parties’ assets of various amounts owing by the son or by his company, set out above at items 17 – 21 inclusive.  Some of the background has been mentioned earlier but the evidence compels these findings:

   (a)$97,009 was paid from the money borrowed jointly and given to ST Pty Limited, the son’s company, to buy machinery which was used in the development.  This is the clear and undisputed evidence of the wife. 

   (b)There was another amount of $34,100 loaned to the son from those borrowed funds.  The wife agreed this had not been disclosed in earlier documents filed in the court but she said that had been a mistake and she had not tried to hide it. 

   (c)The wife agreed an amount of $60,810 was spent on “machinery at cost” as set out in a document she prepared.  Again, this was paid out of the borrowed funds.  The wife said in re-examination that the machinery had been acquired to do work in the development, it had been used in the development work, and she anticipated it would be required for future work, including the construction of the right of way to the T House back block.  But this does not exclude the amount being brought to account here as indicated.  Whatever machinery was bought it is not suggested in the wife’s case it be included as an asset of the parties; to the contrary, it is her evidence the son has it. 

   (d)The financial accounts of ST Pty Limited reflect an amount of $104,926 owing to the parties as at 30 June 2001 [exhibit 6].  Taken to the accounts and that particular item, the wife said she had forgotten all about it.  She agreed it had not been repaid and that this is a further amount owing by the son’s company to her and her husband. 

   (e)As for the agreement to pay the Valuer-General’s value of Lot 4 F Road, this was the clear evidence of both parties. 

2. In short, the amounts are included because there is clear evidence of debt arising from money advanced by the wife in her management of the borrowed funds; the evidence of debt has not been contradicted; in so far as the money was used to acquire other assets such as machinery those assets are not advanced as being part of the parties’ joint assets; there is no suggestion of forgiveness of any debt; and there is no reason to suppose the debt cannot be repaid. 

3. The wife’s superannuation entitlement is included with other assets.  This follows the lead of both counsel, which is appropriate to the circumstances of the case, and not inconsistent with the Full Court decision in Coghlan (2004) 33 Fam LR 414.

4. There are also included paid legal costs: $49,239 paid by the wife and $10,120 paid by the husband.  There is a disparity in the amounts paid and it is appropriate the paid amounts be included as notional assets. 

Evaluation of contributions

1. Depending on the circumstances, it is legitimate to approach the assessment of contributions by adopting a global approach, taking account of all of the assets, or an asset by asset or category of asset approach, taking account of contributions by reference to individual items or groups of items.  Here the submissions for both parties adopted the global approach and that is appropriate to the case.  I should add that the groupings of the parties assets into different categories which I have done earlier is because I have found it useful to look to the value of particular groups of items and has nothing to do with the approach to evaluating contributions. 

2. From the background it is clear that both have made contributions of the kind described in s 79(4)(a)–(c).  Mr Lloyd argues for the wife that her contributions should be assessed as superior overall by a significant margin while Mr Hallen SC argues that contributions should be assessed as equal.  It is acknowledged that despite there being a long marriage such as this there is no presumption of equality of contribution though when all contributions of varying kinds are weighed in the balance the particular facts of the case may well lead to that conclusion, as the High Court made clear in Mallet [see Gibbs CJ at 610 and Deane J at 639–41].  For my part, I agree that all of their contributions to the present time when balanced overall should be seen as approximating equality. 

3. It is now almost 48 years since they married and in that long period to the present time they have each made various contributions.  They both worked hard over those many years.  The husband’s business was operated for several decades before his ultimate retirement in the mid-1990/s and it survived during all those years, even in its diminished state after the son left and began his own business in 1989.  It floundered at times and money was often borrowed to meet business debts.  It seems likely the assets he introduced, when sold over time, were used for the most part to pay business debt.  In the late 1970’s he received inheritances of relatively substantial amounts [when compared to [the wife’s] inheritances] and he used the bulk of what he received to pay debts related to the business and thus to sustain it.  There was also financial assistance forthcoming from the wife who paid debt or repayments on debt at times from her resources and she made a significant contribution in that direction when, in the mid-1990’s, she used almost half of the proceeds of sale of her interest in the family business and realty to pay out a mortgage, with the balance going into her superannuation fund.  It is apparent, therefore, that the business was propped up in this way by capital injections from several directions, by both parties, over many years.  Despite this, throughout the years the wife’s business remained a source of support for the family’s needs and for the acquisition and improvement of the land they acquired jointly in the mid-1960’s, which forms the backbone of their wealth now. 

4. There were a number of years early in the marriage from around the birth of their first child when the wife was not in the paid workforce and for much of that time she was paying off her share of the debt related to the property she and her brother had acquired.  No doubt she did so, when she was not employed, from the rent earned from the realty.  She was able to retain her interest in the business and the realty over many years until its sale in 1996/97 and from the proceeds she made the contributions already discussed, which represented a significant injection of capital from her to discharge debt and increase her superannuation entitlements.  Over those many years when she worked in the family business she earned income and she contributed her earnings for family purposes of one kind or another. 

5. In summary, the history shows that the assets the husband introduced, which provided their home for the first 4 years or so, were contributed over time to the parties’ financial benefit, he contributed his relatively substantial inheritances, and he applied the income derived from his business for the decades he operated it for those same purposes.  It also shows that the assets the wife introduced, realised decades later for a relatively substantial sum, were contributed to their financial benefit, as was the income she earned over the years.  Her inheritances were of a much lesser sum than the husband’s and while she contributed the first and smaller amount to their joint benefit she gave the second and larger to the son, as discussed. 

6. It is clear that the wife made the far more substantial contribution in the household with domestic chores and to the children’s upbringing.  By the same token, there was some assistance from the husband around the house and garden and with the children at times.  In so far as there is disparity in this quarter, the husband made contributions in other ways, such as the extensive renovations he did to the properties they now own when they were acquired and later over time. 

7. It might be thought appropriate in the first instance to see the wife’s contributions as greater by reason of the large sum of money she received from the family business and realty in 1996/97, and the greater contribution she made as homemaker and parent while the children were dependent, and perhaps the closer involvement she had with the work done on the development of the properties until that ceased.  But in my assessment any weighting in her favour is well counterbalanced by more recent developments operating in the husband’s favour.  I refer in particular to the substantial sum of money paid to the son in 2002 to address the debts of the company he and the wife formed, to pay the liquidator in 2004, and to pay costs of the Supreme Court action by the liquidator, whatever the amount might have been.  None of that had anything to do with the husband and yet the payments out had the effect of reducing substantially the assets that might otherwise be available for distribution here and thus reducing what he would receive.  Added to that, interest has been paid on a large portion of the money applied in that direction thereby increasing the debt for which the husband is partly responsible. 

8. In my opinion when all of the history is considered and weighed, equality of contribution is the appropriate result. 

Section 75(2) factors

1. There is an age gap of some 12 years or so and it is argued strongly for the wife that this is a significant factor requiring adjustment of the contribution assessment in her favour by reason of her likely greater future needs over a longer period.  It is a difficult issue to assess; nonetheless, I have been unpersuaded by Mr Lloyd’s argument.  Life expectancy tables have their place but there is nothing in the final analysis here to connect the parties’ chronological age to anticipated life expectancy.  That might have been different if there was evidence of the husband suffering ill health.  He does have some health problems but there is nothing in what has been said to conclude his wife is more likely than not to outlive him when she herself is almost 74 years of age. 

2. To the extent that might be thought wrong, there is the consideration that the wife has advantages for the future that seem to be closed to the husband.  By that I refer to her greater degree of independence with day to day needs whereas the husband may well require some supported living care which will come at a cost.  I also refer to the strong likelihood the wife will be the recipient of support from their adult children in the future, unlike the husband. 

3. Of course neither has any capacity for paid employment and each will have to rely on the capital they receive to support themselves in the future.  The wife will have the income from the annuity provided by her superannuation, the level of it is apparent from her evidence, and she will retain that entitlement on distribution of the assets.  Of course there would be nothing stopping the husband from investing some of the capital he receives in due course in a similar fund so he can also derive an income stream, should he see fit. 

4. Neither has any commitment to the support of any other person or any dependents. 

5. Despite the arguments for adjustment to contributions, I am unpersuaded any is warranted. 

Just and equitable

1. In my view, to see the parties equally entitled to what they have amassed over the past 48 years, having regard to the history of key events over those many years, is just and equitable.

Form of orders

1. The husband wishes to leave the R property and move to independent accommodation.  To enable that to happen he will have to be given sufficient capital as soon as possible.  An amount of $50,000 to be paid in the immediate future is sought if the alternative is taken of not putting all the realty to public auction now.  In fact I do propose giving the wife an opportunity to buy R property and Lot 5 and therefore he will need funds to re-establish himself elsewhere.  The amount sought is reasonable and available. 

2. The wife wants to retain all of the realty and remain living at R property.  Despite her application, The wife did come to acknowledge that the T House should be sold as soon as possible after the work on the residence is completed [there is no estimate of what that would cost but presumably it would be fairly readily achievable] and the back block sold as soon as the right of way is constructed [estimated to take about 6 weeks at a cost of $5,000]. 

3. The principal submission for the husband is in opposition to that for reasons related largely to what is regarded as an unrealistic plan and it is suggested there be a public auction of all of the property as soon as possible with the wife having the right to bid.  However, there is an alternative submission to enable her to retain some of R property and Lot 5 but for the sale of the T House and the back block after completion of the work there, provided there is no delay in the husband receiving his entitlement. 

4. There is no doubt in my mind at all that the just and equitable requirement compels the T House and the back block to be sold after completion of the work discussed and thus give to each party the advantage of whatever is the net benefit.  If the wife’s belief that the back block could be sold for $500,000 quite separately from the value of $950,000 given by Mr L for the whole property, then that would represent a significant windfall for what appears to be relatively little development to be completed and financial outlay.  The orders therefore will provide for the completion of that work and the sale of the two properties.  Any cost of completion should be borne equally.  The question of what would become of the sale proceeds given the security held by the bank and whether any of the funds would be available to the husband at the time is unknown because nothing is known of the mortgagee’s attitude to this or any of the other proposals. 

5. It might be thought equally compelling that the subdivision of Lot 5 should be completed and the three blocks then sold thus giving the parties the advantage of any benefit over and above Mr L’s value.  If the wife’s belief from discussion with the developer has any substance, Lot 5 will bring significantly more capital from subdivision than Mr L’s estimate in its present state.  What is required to bring the subdivision to conclusion is not particularly clear.  The application has not yet been filed, there is a bush fire report to be obtained and no doubt there will be time taken to have it considered by the council.  If approved, there will be further time taken to market and sell the property.  In any event, it is an alternative proposal of the husband’s to transfer it for the current value along with R property if that can be achieved by the wife without delay.  There is not much optimism about her ability to raise the necessary funds, but the submission contemplates she be given 21 days to elect to purchase his interest at the agreed values and, in that event, pay him within 45 days and relieve him of any obligations under the secured loan. 

6. While Mr Hallen suggests the transfer of Lot 5 occur at the value provided by Mr L, he argues the husband should be paid slightly more in percentage terms for his interest because a significant part of the borrowed funds has been spent on the whole subdivision and the wife would retain that benefit on transfer to her of Lot 5.  But as I see it, if there is concern about the potential for large reward from completion of the subdivision and subsequent sale, it was open to the husband to participate in the completing the subdivision and share in the reward so I take that submission no further. 

7. Given what must be seen as real doubt about the wife’s capacity to pay out the husband’s interest in Lot 5 and R property as well as adjust for equal division of all other assets held by them, I have some hesitation about adopting this alternative course.  The simplest and quickest solution would be to sell these properties along with the T House and the back block.  Yet the proposal to allow the wife a relatively short time to take a transfer is offered and so it seems prudent not to deny her that opportunity if she can manage it.  Therefore, provided she makes the election to acquire Lot 5 and R property at the values determined by Mr L in a short time frame so as not to prejudice the husband, the orders will provide that option. 

8. The framing of orders to achieve an equal distribution of their assets has its difficulties.  One is the complication of the unknown attitude of the mortgagee and what funds might be available from the sale of the T House and the back block.  Quite apart from the realty which has been discussed, the orders will also have to address their other assets and liabilities, listed earlier.  So far as these other assets are concerned, I propose drafting orders that enable the wife to retain the joint bank accounts, more particularly the balance of the borrowed funds held in the account at the National Australia Bank, subject to an obligation to provide some immediate funds to the husband, and for her to be responsible for payment of the land tax and electricity account.  The orders will otherwise provide for her to take the assets listed as to be retained by her and she will be responsible for payment of her credit card debt as listed.  They will provide for the husband to retain the assets listed as to be retained by him and he will also be responsible for payment of his credit card debt which is now relatively substantial.  Finally, the question of where the debts owing by the son or his company should rest is a little more problematic.  Mr Hallen submits they should be taken by the wife.  However, I consider she ought to take the bulk of the debt but not the entirety such that the husband takes $180,000 related to the transfer of Lot 4 and the wife takes the balance of the debts amounting to $296,845.  That there should be a disparity in allocation between them recognises the history; that is to say, the transfer of Lot 4, while done jointly with the wife, was with the husband’s consent whereas the wife controlled the borrowed monies and made the decision, without consultation with him, to advance the various funds to the son or his company.  Accordingly, the orders will provide for the debt arsing from the transfer of Lot 4 of $180,000 to be assigned to the husband and the transfer of the remainder, totalling $296,845, to be assigned to the wife. 

9. Mr Hallen has provided comprehensive draft orders to bring about a result not too dissimilar to that discussed and the adoption of his draft with appropriate amendments to account for differences provides a good starting point to put these decisions into effect.  However, it may be the parties’ legal representatives would prefer to submit a draft form orders incorporating these decisions and if they wish to do so they have until the end of today to submit a draft.  Also, it may well be that the decision to provide for equality of distribution puts the option of taking a transfer of the two properties outside the wife’s reach – her position must have been analysed and the impact of equality of distribution considered well before this - and if that is the case then provisions for transfer can be side stepped and the orders go straight to sale. 

10. For those reasons, orders will issue after there has been an indication by the legal representatives as to whether or not they wish to submit a draft. 

Schedule A – Orders sought by Wife

1.The Wife pay to the husband within 6 months of the subdivision of Lot [5] [E] Street, […], being completed, the sum of $885,000.

2.        Upon the wife’s complying with order 1 hereof:

2.1the husband transfer to the wife all his right title and interest in the properties situated at and known as:

2.1.1   “[R property]”, [S] Street, […];

2.1.2   Lot [5] [E] Street, […];

2.1.3   “The [T] house”, [S] Street, […].

2.2The husband transfer to the wife any interest he may have in any jointly held term deposits or bank accounts.

3.Upon the husband complying with order 2 hereof, the wife indemnify the husband in relation to any outgoings or encumbrances over the properties in order 2 hereof.

4.The husband transfer to the wife any interest he may have in the furniture and contents situate at “[R property]”, [S] Street, […].

5.That, in the event he opposes these orders, the husband pay the wife’s costs of an incidental to this application.

Schedule B – initial response of Husband

‘3.‘…..alternatively, that the husband and the wife do all acts and things and pay all expenses as may be required to obtain a valuation of all real estate owned jointly by either of the parties and that upon identification of the gross value of the said property any liability attaching thereto in the nature of mortgage, charge or financial encumbrance, rates taxes and charge be notionally deducted and the wife pay to the husband a sum equivalent to one half of the balance then remaining.

4.Upon payment to the husband of the said sum in order 3 the husband do all acts and things and sign all documents and instruments as may be necessary to transfer to the wife the whole of his interest in the said real property and that the wife shall thereafter indemnify the husband against all liability of whatsoever nature or kind then existing or in the future in relation to the said property.

5.The husband and the wife divide equally all furniture, furnishings and effects situate at “[R property]” [S] Street […] and in the event that there is no agreement on the said equal division that the wife prepare two lists of such property of equal value and that the husband choose between one of those two lists and thereafter that he be declared the sole legal and beneficial owner of all property in that said list.

6.The husband and wife divide equally any interests that they may have either jointly or severally in term deposits or bank accounts.

7.        Unless otherwise specific herein:

(a)Each party be solely entitled to the exclusion of the other, in law and in equity, to all property (including choses-in-action) in possession of such party as at the date of this Agreement.

(b)All insurance policies are hereby declared the sole property of the beneficiary named therein.

(c)All superannuation policies are hereby declared the sole property of the person whose name the policy is in.

8.Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

9.In the event of either parties’ failure to sign any necessary documents or instruments or to do any acts required or contemplated by these orders to be done with such failure continuing for 14 days, then the Registrar of the Family Court of Australia in pursuance of the powers conferred on him or her under section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instruments in the name of the person who has refused or neglected to sign any document or instrument or to do any act required or contemplated by these Orders.’

Schedule C – amended orders sought by Husband

‘1.       The wife shall pay to the husband, within 7 days of the publication of these reasons for judgment, the amount of $50,000 ("the interim payment").

2.        The wife, forthwith, shall do all such acts and things necessary to complete the residence known as "The [T] house" and the right of way described in Ex. 5' in these proceedings, to enable "The [T] house" and Lot 1 […] to be sold as soon as is reasonably practicable.

3.        The wife shall pay the costs and expenses necessary to be paid to carry out the work referred to in Paragraph 3 above.

4.        The husband and wife, forthwith, shall do all such acts and things, and execute all deeds, documents, instruments, and writings, necessary to procure the sale, as soon as reasonably practicable, of:

a.        The real property known as "The [T] house" being situated at, and known as, [S] Street […]; and

b.        Lot 1 […].

5.        Unless otherwise agreed, by the husband and the wife, in writing, the real property referred to in Order 4 above shall be offered for sale:

5.1 Within 70 days of the date of this order, or within such other time as is agreed, in writing, by the parties, by public auction;

5.2 Within 14 days of the date of this order, the estate agent to have the conduct of the sale will be agreed upon by the parties, or failing agreement within a further 21 days, will be nominated by the President for the time being of the Real Estate Institute of New South Wales;

5.3 The reserve price of the properties will be as agreed by the parties, or failing agreement, determined by [Mr L];

5.4 In relation to the said properties, each will be offered for sale by contract of sale prepared on terms by the solicitor acting for the parties, completion thereof being within 42 days of entering into a contract for sale;

5.5 In relation to each of the real properties, the contract will provide for a deposit payable of not less than 10% of the sale price;

5.6 The firm of solicitors to have the conduct of the sale, will be one which conducts a practice in […], chosen by the parties, or if agreement thereon cannot be reached, within 28 days of the date of this order, will be nominated by the President, for the time being, of the Law Society of New South Wales, or his nominee;

5.7 If either, or both, of the properties referred to in Order 3 above is not sold by public auction, each of the parties will do all acts and things reasonably required of them, by the estate agent, to sell that property;

5.8 The parties will be responsible for the payment of one-half of the advertising and other sale expenses payable before the property is auctioned, with the wife to pay such costs and expenses from the balance of the joint borrowings held by her, in her own name, in the ISaver account with the NAB;

6.        Upon settlement of each sale of the real property referred to in Order 4 above, the husband and wife shall do all acts and things necessary to procure the payment, from the proceeds of sale, in the following manner and priority:

6.1 Payment of the agent's commission and auction expenses, if any, due on the sale;

6.2 Payment of the legal costs and disbursements of the sale;

6.3 Payment of an amount equivalent to (insert percentage share or amount) to the husband, by his solicitors;

6.4 The balance to reduce the mortgage debts secured on this and the other real property referred to below.

7.        The wife shall notify the husband, by his solicitors, in writing, within 14 days of the publication of these reasons for judgment, whether or not she intends to acquire the husband's right, title and interest in the property referred to in Order 1.1, 1.2 and 1.4 below, from the husband, for $(insert amount).

8.        If the wife notifies the husband, by his solicitors in writing, that she intends to acquire the husband's right title and interest in accordance with Paragraph 7 above, she will pay to the husband, within 45 days of the publication of these reasons for judgment, the sum of $ (insert amount).

9.        Should the wife fail to notify the husband of her intention to acquire the husband's right title and interest, in accordance with Paragraph 7, or pay to the husband, by his solicitors, the sum of $(insert amount) in accordance with Paragraph 8 above, or should she fail to make the payment within the time referred to in Order 8 above, then Orders as set out in Alternative 2 below are to immediately come into effect.

10. Simultaneously with the payment referred to in Paragraph 8 above:

(a)      The husband shall transfer all of his right, title and interest, in the property referred to in Paragraph 4 above, to the wife, at her expense;

(b)      The wife shall indemnify the husband against all taxes, including capital gains tax, and all outgoings with respect to the said property from the date of notification that she intends to acquire the husband's right, title and interest;

(c)       The wife shall do all acts, and pay all sums, necessary to discharge any mortgages in the parties' joint names ("the mortgages"), save that the parties' shall share equally any fees required by the mortgagee to prepare and/or register the discharge documents.

(d)      The husband shall transfer, or assign, in writing, all of his right, title and interest, in any debt owed to the parties, or either of them by [the son], [daughter-in-law] and/or [ST] Pty Limited, to the wife.

11.      Within 14 days, the wife shall transfer to the husband all of her right title and interest in, and to, the Subaru motor vehicle in the possession of the husband.

12.      Within 14 days, the husband shall transfer to the wife all of his right title and interest in, and to, the motor vehicle in the possession of the wife and her jewellery.

13.      The wife shall retain her superannuation entitlements.

14.      Except as provided by these orders, unless otherwise agreed by the parties, in writing, the husband may retain such items as he chooses, from the list of chattel items valued by [C] Auctions, excluding motor vehicles, such chattels to have a value, in total, of no more than one half of the total value attributed to the chattels in the said list.

15. That in the event that either party refuses, or neglects, to execute any deed or instrument necessary to give force and effect to all, or any, of these orders, the Registrar of the Family Court of Australia at Sydney be appointed, pursuant to section 106A of the Family Law Act, 1975 to execute such deed or instrument, in the name of the defaulting or neglecting party, and to do all other acts and things necessary to give validity and operation to the said deed or instrument.

16.      That pending the payment referred to in Order 7 above,

(a)      The parties shall each be able to occupy "[R property]";

(b)       The wife shall be responsible for all outgoings in respect of the property referred to in Order 1.1 - 1.4 below, such outgoings to be made by her from the balance of the joint borrowings held by her, in her own name, in the ISaver account with the NAB and shall indemnify the husband in respect thereof;

(c)       The wife shall pay, forthwith, the husband's credit card debt, from the balance of the joint borrowings held by her, in her own name, in the ISaver account with the NAB and shall indemnify the husband in respect thereof.

17.      That pending the payment of the amount referred to in Paragraphs 1 and 7 above, each of the parties is restrained from:

(a)      disposing of any property, save to the extent necessary to comply with these orders; and

(b)      further encumbering, or, in any way, diminishing the value of the property referred to in Paragraph 4 below.

18.      In the event that the wife does not make the payment of the amount referred to in Paragraph 7, the husband shall receive interest on that amount until the date of payment, such interest to be calculated from the date on which the payment was to be made, at the rate prescribed by the Family Law Rules.

19.      That liberty be reserved the parties to apply on 7 days notice regarding any further implementation of these orders.

ALTERNATIVE 2

1.        The husband and wife shall forthwith do all such acts and things, and execute all deeds, documents, instruments, and writings, necessary to procure the sale, by public auction, as soon as reasonably practicable, of:

1.1 The real property known as "[R property]" being situate at, and known as, [S] Street […];

1.2 The real property being the vacant land at Lot [5], [E] Street […], together with all the documents referring or relating to the subdivision of that property including all plans, studies and reports referred to in Order 2;

1.3 The real property known as "The [T] house" being situated at, and known as, [S] Street […];

1.4 The real property being the vacant land at Lot 1 […], being the land situated at the rear of "The [T] house";

1.4 All plant, equipment and materials other than household contents in the possession of the husband and wife referred to in the valuation prepared by [C] Auctions including the plant and equipment paid for by the wife from funds borrowed by the husband and wife.

2.        Unless otherwise agreed between the husband and wife in writing, the real property and chattel items referred to in Order 2 above shall be offered for sale:

2.1 By public auction to take place within 45 days of the date of the order, or within such other time as is agreed, in writing, by the parties;

2.2 Unless otherwise agreed by the parties, in writing, within 10 days of the date of this order, the estate agent to have the conduct of the sale will be nominated by the President for the time being of the Real Estate Institute of New South Wales, or his nominee;

2.3 Unless agreed by the parties, in writing, the reserve price of the real properties will be as determined by [Mr L];

2.4 In relation to the real properties, on an unconditional contract of sale of 42 days;

2.5 In relation to the real properties, the contract will provide for a deposit payable of not less than 10% of the sale price;

2.6 The solicitors to have the conduct of the sale will be one who conducts a practice in [the town], chosen by the parties, or if agreement thereon cannot be reached within 10 days of the date of this order, nominated by the President for the time being of the Law Society of New South Wales or his nominee;

2.7 If any of the real properties referred to above is not sold by public auction, each of the parties will do all acts and things reasonably required of them by the agents to sell that property;

2.8 The parties will be responsible for the payment of one-half of the advertising and other sale expenses payable before the home is auction, with the wife to pay such costs and expenses from the balance of the joint borrowings held by her, in her own name, in the ISaver account with the NAB;

3.        If any of the properties are not sold within 14 days after the said auction, the husband and wife will do all acts and sign all necessary documents to procure a sale by private treaty within a further 5 weeks of that date upon the same terms and conditions set out above.

4.        Upon settlement of each sale of the real property and chattel items referred to in Order 3, the husband and wife shall do all acts and things necessary to procure the payment, from the proceeds of sale, in the following manner and priority:

4.1 Payment of the agent's commission and auction expenses, if any, due on the sale;

4.2 Discharge the mortgage and any other encumbrances affecting the property;

4.3 Payment of the legal costs and disbursements of the sale;

4.4 Payment of the husband's Commonwealth Bank Card;

4.5 Subject to Orders 13 and 14 the balance to be divided equally between the parties.

4.6 Payment to the husband, from the wife's share, pursuant to Order 4.5, an amount which would result in the husband retaining $164,000, or such other amount calculated as being one half of the value of the wife's superannuation at the date of the hearing;

5.        That any balance left after the discharge of the mortgage, in the ISaver account held in the name of the wife, shall be divided equally between the wife and the husband.

6.        That liberty be reserved the parties to apply on 7 days notice regarding any further implementation of these orders.

7.        The wife shall forthwith deliver, or cause to be delivered, to the husband's solicitors, for delivery to the real estate agent appointed to act upon the sale of that property, all documents referring, or relating, to the vacant land being Lot [5] [E] Street […], and/or the proposed subdivision of the said property, with such documents to include, but not be limited to all plans, applications, searches, environmental studies, geological or geotechnical studies or surveys and any other reports relating to the said property.

8.        The wife shall transfer to the husband all of her right title and interest in, and to, the Subaru motor vehicle in the possession of the husband.

9.        The husband shall transfer to the wife all of his right title and interest in, and to, the motor vehicle in the possession of the wife and her jewellery.

10.      Subject to Order 4.5 above, the wife shall retain her superannuation entitlements.

11.      Except as provided by these orders, unless otherwise agreed by the parties, in writing, the husband may retain such items as he chooses from the list of chattel items valued by [C] Auctions, excluding motor vehicles, such chattels to have a value of no more than one half of the total value attributed to the chattels in the said list.

12. That in the event that either party refuses, or neglects, to execute any deed or instrument necessary to give force and effect to all, or any, of these orders, the Registrar of the Family Court of Australia at Sydney be appointed, pursuant to section 106A of the Family Law Act, 1975 to execute such deed or instrument, in the name of the defaulting or neglecting party, and to do all other acts and things necessary to give validity and operation to the said deed or instrument.

13.      From her share of the proceeds of sale referred to in Order 4.6 above, the wife shall pay to the husband one half of the amounts owing to the parties by [the son], [daughter-in-law] and/or by [ST] Pty Ltd, and the husband thereupon shall transfer, or assign, all of his right title and interest in that debt to the wife.

14.      From her share of the proceeds of sale referred to in Order 4.6 the wife shall pay to the husband, one half of the difference between the amount paid by way of solicitors fees paid to the husband's solicitors for these proceedings and the solicitors fees paid to the wife's solicitors for these proceedings.

15.      That, otherwise, each of the parties is declared to be solely entitled to all items of property presently in her, and his, respective control.

16.      That pending the sale of the properties referred to in Paragraph 1.1 - 1.5 above, the wife is restrained from:

(a)      disposing of any property, save to the extent necessary to comply with these orders; and

(b)      further encumbering, or, in any way, diminishing the value of the property referred to in Paragraph 1.1 - 1.4 above.

17.      The wife's Application is otherwise dismissed.

18.      Discharge injunctions ordered on 24 March 2006.’

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FOSTER & FOSTER