G and G

[2010] FCWAM 7

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : G and G [2010] FCWAM 7

CORAM : DUNCANSON M

HEARD : 30 NOVEMBER, 1 & 10 DECEMBER 2009

DELIVERED : 27 APRIL 2010

FILE NO/S : PTW 4970 of 2005

BETWEEN : G Applicant/Husband

AND G

Respondent/Wife

Catchwords:

Property settlement - Long separation - Compensation payment - Referral to Australian
Taxation Office - Husband's entitlement to service and TPI pensions - Adjustment to Wife

Legislation:

Family Law Act 1975, s 75(2), s 79

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr Phillips
Respondent : Mr Redman

Solicitors:

Applicant : S V Phillips & Co
Respondent : Gibson & Gibson

Case(s) referred to in judgment(s):

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Malpass & Mayson (2000) FLC 93-061

1[Mr G] and [Mrs G] were married in 1967 and separated in 1997. They have two adult daughters.

2On 19 January 2006 Mr G commenced proceedings in the Family Court seeking settlement of the parties’ property. By the time the matter came to trial the parties had been separated for about twelve years.

3Mr G says that after separation he supported Mrs G financially and he seeks payment of various sums to be reimbursed for doing so, together with an adjustment of property to equalise what each party received after separation. Mrs G seeks payment of funds held in Trust and otherwise that each party retain what they have.

ORDERS SOUGHT

4 The orders sought by Mr G are contained in a Minute of Orders Sought in his

Papers for the Judge, filed 25 November 2009 and are as follows:

1. The wife pay to the husband:

(a) the sum of $34,951.26 being the amount of the judgment entered in favour of the Husband in [the local] Magistrate’s Court … on 3 January 2006;

(b) the sum of $3,860.93 being post-judgment interest at the rate of 6% per annum from 4 January 2006 to the date hereof on the judgment referred to in Item (a) hereof PLUS interest at that rate continuing until payment;

(c) the sum of $2,400.00 being rental at $150 per week from

27 December 2005 to 17 April 2006;

(d) the sum of $3,675.05 being costs of stove replacement, repairs, replacements and clean up costs and water consumption account relating to [the S Street property];

(e) the amount necessary to equalise the sums disbursed by the husband after separation in relation to jointly owned real estate, amounts received by the wife following the sale of jointly owned land after separation, funds drawn by the wife from the family company at and around the time of separation and to refund monies loaned by the husband to the wife since separation and generally to equalise the share of assets retained by the parties following separation.

2.All right, title and interest of the wife in the proceeds of sale of the S Street property shall vest in the husband and the solicitor for the husband be at liberty to pay to the husband the balance of those funds now held in Trust.

3.Paragraphs 6 and 7 of the orders made on 30 March 2006 be discharged.

4.Subject to payment of the amounts ordered in Item 1 hereof, all right, title and interest of the husband in the house and land at the F Street address shall vest in the wife.

5.All right, title and interest of the wife in the house and land at the H Street address, do vest in the husband.

6. The injunctions contained within Item 1 of the order made on

30 January 2006 and Item 1(d) of the order made on
30 March 2006 be discharged.

7.The wife indemnify the husband against any liability for debts standing in the name of the wife.

8.The husband indemnify the wife against any liability for debts standing in the name of the husband.

9.Within 14 days of the publishing of these orders by the Court, the wife shall make available for collection by the husband the following items of antique furniture and sundry personal property items:

(a) 1 x Red Lounge ; (b) 1 x coffee table;

(c) 1 table with 6 chairs; (d) 1 x sideboard;

(e) 1 x tea trolley; (f) 1 x ice-box bar; (g) 1 x desk;

(h) 1 x china cabinet;

(i) 1 x full dinner setting with extra matching pieces; (j) 1 x cutlery setting;

(k) 1 x ceramic finals football 1992; (l) 1 x ceramic finals football 1994;

(m) 1 x Allied Pickford box containing boxed collectable cars including the [racing] cars; and 1 x long ladder.

10.All right, title and interest of the husband in any other property now in the possession or name of the wife do vest in the wife.

11.All right, title and interest of the wife in any other property now in the possession or name of the husband do vest in the husband.

12.The parties have liberty to apply as to the implementation of these orders.

5 The orders sought by Mrs G are contained in a Minute of Orders Sought filed on

24 November 2009 and are as follows:

1. Upon the making of these Orders:

(a) The Applicant transfer to the Respondent the whole of his right, title and interest (if any) in the property at the address the F Street property.

(b) The Respondent transfer to the Applicant the whole of her right, title and interest (if any) in the property at the address the H Street property.

2.The Respondent indemnify the Applicant against the payment of all monies now due or to accrue hereafter in relation to the mortgage registered on the title of the property, together with all other liabilities and outgoings in relation to the F property.

3.The Applicant indemnify the Respondent against any liabilities or outgoings in respect to the H Street property.

4.Within 28 days of the making of these orders, the Applicant pay the Respondent the sum of THIRTY FOUR THOUSAND AND SEVENTY THREE DOLLARS AND THIRTY SIX CENTS ($34,073.36) from the Commonwealth Bank Australia Cash Investment Account, Account Number xxxxxxxx.

5.Within 14 days of the making of these orders the Applicant do all acts and execute all documents to transfer to the Respondent the registration and all of his right, title and interest in the 1997 [Japanese] motor vehicle.

6.There be an injunction and the Applicant be permanently restrained from pursuing further action in the Magistrates Court Civil General Procedure claims against the Respondent.

7. Unless otherwise stated within these orders:

a. The parties each be declared to be the sole beneficiary and absolute legal owner of all other items of personal property presently in their possession, custody or control

of each of them including but not limited to motor vehicles, furniture, furnishings, appliances, jewellery and personal effects;

b.The parties indemnify each other in respect to monies owing to any other person or bodies in respect of the items in their possession, custody or control;

c. The parties each retain and be declared the sole beneficial owner of any monies standing to the credit of any bank, building society or any credit union currently in their sole name; and

d.The parties each forego any claim against any superannuation and/or life insurance policies including the contributions, entitlements and benefits held by, for or on behalf of the other party and that each party be declared to be the sole beneficial owner of such policy held in their respective names.

BRIEF BACKGROUND

6Mr G is aged 64 years and is a pensioner. Mrs G is aged 63 years and is employed as a cleaner.

7They commenced cohabitation in June 1967 and married in August 1967. They have two daughters, [Bette], aged 38 years and [Frances], aged 35 years.

8 In 1992 Mr G and Mrs G acquired and operated a roadhouse. In May 1997 Mrs

G suffered injury when she was electrocuted at the roadhouse.

9 The parties disagree as to the date of separation. Mr G says they separated in October

1997. Mrs G says they separated in August 1997.

10 The parties maintained financial ties for some years after separation. In 2006 Mrs G

received substantial damages.

THE LAW

11 The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143). Those steps are:

•To make findings as to the identity and value of the assets and liabilities of the parties;

•To identify and assess the contributions made by the parties within s 79(4)(a), (b) and (c);

•To identify and assess the s 75(2) factors, together with any matters relevant pursuant to section 79(4)(d)-(g);

• Consider whether the proposed orders are just and equitable.

FINANCIAL HISTORY

12 The length of time since separation has made the task of tracing the parties finances extremely difficult. Some records are not available and at times both parties were unable to recall financial detail.

13 In about 1974 the parties moved south of Perth and Mr G obtained employment with [a local company]. They bought a property nearby which they subsequently sold in 1984 when they moved further south. They brought a property at N Street with a Defence Service Home Loan secured by mortgage to Westpac Bank. In 1985 they purchased a block of land at M Street. In 1989 they sold the M Street property and obtained a loan from National Australia Bank to purchase a house at the Highway as an investment property.

14 In 1992 Mr G ceased employment with the local company and received a payout of around $400,000. After tax the balance of his payout, approximately $350,000 was applied to the purchase of the lease of the roadhouse and tavern in the north-west which the parties acquired with effect from 1 July 1992. At the time he ceased work with the company, Mr G began to receive a Totally and Permanently Incapacitated (TPI) pension as well as his service pension.

15 The business was acquired through a company established by the parties, O Holdings Pty Ltd as Trustee of the G Family Trust. The shareholders and directors of O Holdings were Mr G, Mrs G and Bette. The business involved fuel sales as a service station, accommodation units, caravan park, tavern and roadhouse/restaurant.

16 Mrs G was the manager of the roadhouse for which she received a weekly wage, which at one time was $700 per week. At this time Mr G ceased receiving the service pension but continued to receive his TPI pension. He helped out in the business but did not receive a wage. Both Bette and Frances worked in the roadhouse as employees of the company from time to time. The parties lived at the roadhouse.

17 It is clear that not all of the income derived by the business was banked and disclosed in the financial statements of the Company and Trust.

18 Frances and Bette said that Mrs G directed them never to use or deposit at the bank $100 notes. They were to be put aside. Mrs G confirmed that she instructed her daughters that no $100 notes should be banked. She said this money was “used for play money, trips overseas and to Perth, buying things”.

19 A National Australia Bank term deposit in the name of G, account number xx- xxx-xxxx was created in April 1997 with the funds which have been described as “play money” and the funds at credit of that account were applied to the cost of Bette’s wedding.

20 The parties and Bette also travelled [overseas] for a holiday. The holiday was funded with “play money”.

21 In about 1993 the parties purchased a vacant block at B Street, south of Perth.

22 In 1994 the parties purchased the lot through O Holdings Pty Ltd. They borrowed $65,000 from National Australia Bank by way of an interest only loan, which was serviced by the Company. The purchase price of the property was $82,000. In 1994 Bette purchased a property at S street.

23 Difficulties in the parties’ marriage developed and they left the north-west and returned to the south in about September 1996. A manager operated the business in their absence but in February 1997 the parties returned to north-west to do so. Mr G and Mrs G obtained an overdraft from National Australia Bank, initially in the sum of

$65,000 to run the business. They attempted to sell the business which was not making a profit. Ultimately the overdraft was extended to $95,000.

24 In May 1997 Mrs G was electrocuted. She commenced proceedings against

[the fuel company] for compensation.

25 In about June 1997 the parties surrendered lease of the business back to the fuel company for a payment of $95,000 which was paid to O Holdings Pty Ltd in early July 1997. They returned to the south permanently in July 1997 and lived together at N Street.

26 Mr G spent periods of time in hospital between August and October 1997. Mrs G says they separated in August 1997. Mr G said they separated in October 1997 when he returned home from hospital to find that Mrs G had moved out of their home.

27 After separation Mrs G lived in the Highway property with Frances who rented the property. Mrs G then moved to the S Street property owned by Bette. The Highway property burnt down in about 1998 and an insurance payout of $20,000 was received which Mr G says the parties shared.

28 At this time Mr G paid sums of money to Mrs G to assist her with her claim against the fuel company. He continued to receive his service and TPI pension. The parties disagree as to the source of funds which were paid by Mr G to Mrs G with Mr G saying the payments were made from his own personal funds. Mrs G said Mr G operated the O Holdings Pty Ltd Bank account into which her workers compensation payments from [the insurance company] were paid and he shared those payments with her from time to time. Later, the workers compensation payments were paid directly to her.

29 In 2000 Mr G purchased the S Street home at from Bette, with the intention that Mrs G would occupy the home and pay rent of $150 per week until her case against the fuel company was concluded. She would then have the option to buy the property. Mrs G disputes that she agreed to pay rent and denies having signed an agreement to this effect in March 2001.

30 Between late 1997 and 2002 the parties sold the properties at N Street, the

Highway, N Street and E Street. N Street was sold in 2000 for a price of $97,000.

The Westpac mortgage of $58,000 was repaid. E Street was sold in 2002 for a price of

$105,000 and the mortgage paid out at settlement in the sum of $104,807. They disagree as to who received what from the sale proceeds. Mr G deposes he paid mortgage payments, rates and outgoings for all of the properties prior to their sale without contribution from Mrs G.

31 In 2002 Mr G purchased a property at H Street, in his sole name, where he currently resides. The purchase price was $55,000 and he obtained a Veterans Service Loan to fund the purchase.

32 In 2005 Mr G commenced proceedings for recovery of rent and other payments made to Mrs G. Fourteen payments of $150 were made by Mrs G to Mr G during

2005.

33 On 31 October 2005 Judgment was delivered at the District Court. Mrs G was awarded damages from the fuel company in the sum of $362,745 made up as follows:

• General damages	$50,000.00
• Past medical expenses and special damages	$10,165.00
• Future medical expenses	$8,162.00
• Past and future travel expenses	$1,000.00
• Past loss of earning capacity	$180,402.00
• Interest on past loss of earning capacity	$41,532.00
• Future loss of earning capacity	$71,484.00
• Total	$362,745.00

34 Mrs G contracted to purchase F Street, on 6 December 2005 with settlement to take place after she received the damages awarded to her. The purchase price of the property was $172,000. She applied $129,000 of the payout towards the purchase and borrowed $50,000 secured by mortgage over the property.

35 On 3 January 2006 Mr G obtained judgment against Mrs G in the sum of

$34,951.26 with interest at the [local] Magistrates Court...

36 Mr G commenced proceedings in this Court on 19 January 2006 for property settlement and on an interim basis he sought an injunction that she be restrained from dealing with her compensation pay out.

37 On 12 January 2006 she received the sum of $146,975.63 as partial payment of her claim. On 30 January 2006 it was ordered, until further order, that Mrs G be restrained from disposing of more than 50% of the monies she was to receive by way of compensation from the fuel company..

38 On 30 March 2006 it was ordered that she be permitted to utilise the proceeds of her claim to acquire F Street, and in the process of doing so she was permitted to borrow no more than $50,000 from Westpac Bank. She was ordered to vacate S Street which Mr G was permitted to sell. It was further ordered that the sale proceeds of S Street after paying certain debts and costs be held in an interest bearing account in

the name of Mr G’s solicitor. These proceeds, amounting to $34,073.36 as at 31

October 2009, are currently held in the Commonwealth Bank in the name of S V Phillips and Co.

39 Mr G claims costs of repair to the S Street property totalling $3,675.05 alleging

Mrs G failed to leave it in a clean and tenantable condition.

40 On 19 October 2006 Mrs G received a further payment from the fuel company in the sum of $85,666.08.

41 In January 2007 the parties were divorced.

ASSETS AND LIABILITIES At Separation

42 Insofar as it can be ascertained the assets and liabilities at separation were as listed below although there is little or no evidence as to the values at that time.

ASSET

N Street

The Highway Block at B Street Lot E Street

(in name of O Holdings Pty Ltd) O Holdings Pty Ltd

Bank Accounts

Jewellery

Furniture and Chattels

LIABILITIES

Westpac Loan, N Street

NAB Loan, The Highway

NAB Loan (in name of O Holdings) E St

O Holdings - overdraft

43 Although the values of the assets at separation cannot be ascertained, around that time Mr G received approximately $25,000 being the proceeds of a Westpac account in north-west and it appears that Mrs G received $22,801 when the ANZ account in north-west was closed.

At Trial

44 The parties disagree as to how the pool of assets is comprised. The significant issue is whether sums of money which are no longer available should be added back into the pool as notional assets. They are as follows:

Mrs G’s Compensation Payment

45 Mrs G includes $71,983.21 of her the fuel company compensation payment in her Schedule of assets and liabilities at Trial. This amount is arrived at by deducting from the entire payout of $232,641.71, the amount paid towards the purchase of F Street, namely $129,000 and $31,658.50 for family law legal fees. In submissions, Mrs G’s Counsel maintained that no part of the compensation payment should be included in the pool and that the house at F Street and the legal fees paid should be excluded as Mr G had made no contribution to those assets. For reasons which I will refer to later I consider that Mr G contributed to the compensation payment and I therefore intend to include the value of the F Street home in the pool and to add back the legal fees paid.

46 I do not intend to add back into the pool the balance of Mrs G’s compensation payout of $71,983.21. I consider it would be inappropriate to do so. The funds are no longer available. From Mrs G’s bank statement it appears that the entire proceeds of the payout have been depleted. The bank statement reveals a small wage as income and I am satisfied that the balance of the compensation payment was used by her to support herself at a time when she had little other income. I do not consider that Mrs G has concealed any part of those funds elsewhere. Although she could not explain two withdrawals of $50,000 from her account, it is more likely than not that those withdrawals were applied to the purchase of her home although she could not recall this.

• The Rent Repayments

47 The rent payments for which Mr G obtained judgment are included in Mrs G’s

Schedule of Assets and Liabilities at Trial. I do not intend to add back this amount of

$34,951.26. I consider it more likely than not that Mrs G agreed to pay rent and signed the rental agreement. I accept Mr G’s evidence that the parties enjoyed a reasonably good relationship for some time after separation. I accept that he had an expectation that he would be repaid when her compensation payment was received. I intend to treat this as a contribution by Mr G and I refer to this later in my assessment of contributions.

• Mr G’s Credit Card Debt and Legal Fees

48 I do not intend to add back Mr G’s Visa credit card debt in the sum of $13,500 for the same reason I have not added back part of Mrs G’s compensation payment. The debt was paid from the sale proceeds of S Street. The debt was probably incurred for living expenses. Given the lapse of time since it was paid out I intend to disregard it. Mr G has paid legal fees of $19,000 and they will be added back into the pool.

• Sale of Properties and accumulated funds

49 Before and after separation the parties purchased and sold various properties.

Most of these transactions were under Mr G’s control and management. Mrs G’s case is that Mr G received the bulk of the sale proceeds. Mr G’s case is that those proceeds were either applied to debt or were shared with Mrs G. The evidence as to who received what is unclear and inadequate.

50 Counsel for Mr G submitted that as the proceeds of sale are no longer available the Court should not get too embroiled in this aspect of the case. Counsel for Mrs G took a very different view. He submitted that Mr G received three significant sums after separation which should be added back to the pool. Those sums were as follows:

•$25,000 at credit of the Westpac account in the name of G trading as O Holdings.

While at the roadhouse Mr G continued to receive his TPI pension which was credited to this account. Mr G said that after the parties left the north-west he opened a National Australia Bank account in the name of G trading as O Holdings in the south and $20,000 of these funds were transferred into that account. He could not remember precisely when that account was opened. His pensions were paid into that account. Thereafter the funds were applied to meeting debt, paying outgoings in relation to jointly owned properties and were also the source of some financial support for Mrs G.

•$95,000 paid by the fuel company for the surrender of the lease of the roadhouse. The evidence in this respect is unclear. It was submitted on behalf of Mrs G that when E Street was sold the loan to National Australia Bank secured over that property was repaid in full. Mr G received $95,000 from the fuel company for the surrender of the lease of the roadhouse and as he has not accounted for that sum it should be added back to the pool. Mr G’s evidence was that the parties obtained an overdraft from National Australia Bank initially of about $65,000 to meet the ongoing running costs of the roadhouse after the parties returned to the north-west in 1996. The overdraft increased to $95,000 and was ultimately paid out upon the sale of the roadhouse with the proceeds.

•$33,500 being the net sale proceeds of N Street. Mrs G’s case is that after paying out the Westpac mortgage Mr G received the net sale proceeds of N Street which he retained for his own use and therefore they should be added back. Mr G’s evidence was that from the sale proceeds of N Street he paid out the Westpac mortgage of $58,000 and Mrs G received $2,000. The balance of about $33,500 was paid into the National Australia Bank to pay for late bills owed by the parties in respect of the roadhouse.

51 I find the evidence regarding the sale of properties and the disposition of sale proceeds to be vague, uncertain and not supported by documentary evidence. The

evidence of both parties is unreliable although I prefer the evidence of Mr G as to the disposition of these funds as he had complete control over the financial transactions and he assumed responsibility, on a practical level, for meeting the debts for O Holdings.

52 I do not consider that Mr G dissipated funds nor do I consider that he has concealed funds. I accept that monies available to him being the above sums together with his service and TPI pensions and any part of the sale proceeds which he received were applied to debt, the maintenance and outgoings of properties and the financial support of himself and Mrs G, both directly and indirectly.

53 Although the evidence regarding the indebtedness to National Australia Bank is unclear I am satisfied that the sale proceeds of the roadhouse of $95,000 received from the fuel company, were applied in repayment of the overdraft of the parties for O Holdings Pty Ltd and were not retained by Mr G for his own use. Given the lapse of time, the uncertainty as to the evidence, and the findings I have made, I do not consider that these three amounts should be added back into the pool as notional assets of Mr G.

• Mr G’s property at H Street

54 Mr G purchased this property in 2002 some five years after separation. He paid

$55,000 for the house and land package with a Veterans Service Loan. It was submitted this item should be excluded from the pool as Mrs G made no contribution to it. I intend to include this property in the pool. Post separation the parties were still linked financially and Mr G had the benefit of a good income by way of his service and TPI pensions.

• Proceeds of sale of S Street held in Trust

55 The property at S Street was acquired by Mr G in 2001, some four years after separation. It was submitted that Mrs G made no contribution to this item and it should be excluded from the pool. I do not agree, for the same reasons as above. The parties maintained financial ties at this time and I can not be sure that any part of the sale proceeds of other properties were not applied to the acquisition of S Street. I intend to include this item amounting to $34,073.36 in the pool. It is held at credit of a CBA Cash Investment Trust Account in the name of SV Phillips and Co.

56 The values of some items are in dispute. Mr G values his home at $255,000 and Mrs G places a value of $260,000 on it. I intend to accept Mr G’s valuation of his own home of $255,000. Similarly I intend to accept Mrs G’s value of her own home in the sum of $240,000 rather than Mr G’s value of her home of $245,000.

57 Mr G’s Camry motor vehicle is valued by him in the sum of $10,000. Mrs G places a value of $12,000 on it. I intend to accept Mr G’s lower value for that vehicle and also for the [imported] motor vehicle in the sum of $1,000.

58 Similarly I will accept Mrs G’s value of the [Japanese] motor vehicle in her possession over Mr G’s value for the car of $4,000. This vehicle is registered in Mr G’s name.

59 The sums at credit of Mr G and Mrs G’s bank accounts are insignificant and I

shall disregard them.

60 Mrs G states her household contents are valued at $17,500. Mr G values the various antiques and various jewellery in her possession in the sums of $14,910 and

$12,995 respectively. I intend to accept the higher values for these items. I do this because it is clear from the evidence that significant amounts of money including “play money” were spent on jewellery while the parties were in the north-west. Receipts totalling $43,822 for the purchase of jewellery were produced. Mrs G does not mention jewellery in her Form 13 financial statement and yet in evidence she conceded that jewellery and items of value were held in a safe. I therefore consider it more likely that Mr G’s estimates as to these items in Mrs G’s possession are reliable.

61 Mr G seeks an order that Mrs G make available for collection by him of sundry items of antique furniture and personal property. He said she removed these items when she vacated S Street. There was little other evidence about ownership of these items and no evidence about their value. They have been in Mrs G’s possession for many years and are included in her list of assets. In these circumstances I do not intend to order the return of furniture to Mr G. It may be that the ceramic finals footballs and box of collectable cars that is items (k), (l) and (m) on the list are personal to Mr G and subject to hearing from Counsel I intend to order that these be made available for collection by him.

62 Mrs G holds 160 AMP shares which she omitted from her Form 13 financial statement having forgotten about them. As at 14 April 2010 AMP shares were valued at $6.51. The value of 160 shares is $1,041 and I intend to include that amount in the pool of assets.

63 There is no significant discrepancy as to the liabilities. Both parties include their credit card debts, in the case of Mr G $25,000 and in the case of Mrs G $9,500. I accept that the parties may have incurred these debts for living expenses although on an on-going basis Mr G has been in receipt of his service and TPI pensions. Since

2006 Mrs G has had access to her compensation payments and her limited earnings. It is so long since separation and there is considerable uncertainty surrounding the debts. I do not intend to take into account the credit card debts incurred post separation given the passage of time.

64 I find the pool of assets available for division to be as follows:

ASSETS	HUSBAND	WIFE
H Street,	$ 255,000
F Street,	240,000
Camry Motor Vehicle	10,000
[imported] Motor Vehicle	1,000

[Japanese] Motor Vehicle	3,000
Furniture, household contents	5,000
Various antiques	14,910
Jewellery	12,995
CBA Cash Investment Account	34,073
160 AMP Shares	1,041
Husband’s legal fees added back	19,000
Wife’s legal fees added back	31,658
ASSETS TOTAL	327,073	300,604
Superannuation REST Superannuation	5,824
TOTAL ASSETS (Incuding superannuation)	327,073	306,428

LIABILITIES	HUSBAND	WIFE
Westpac Home Mortgage	49,000
Defence Home Loan Mortgage	11,900
Westpac Home Mortgage	48,000
Toyota Finance	12,500
TOTAL LIABILITIES	73,400	48,000
TOTAL NET ASSETS	253,673	258,428

CONTRIBUTIONS

65 Neither party had any assets of significance when they commenced cohabitation.

The parties agree that their contributions to date of separation were equal. Their disagreement as to post separation contributions arises from a number of issues.

Payments made by Mr G to Mrs G for her support

66 After separation Mr G continued to receive his service and TPI pensions. Mrs

G also received a service pension. Mr G maintains that he advanced funds totalling

$38,759.50 in 1997 and 1998 to Mrs G to assist her in pursuing her compensation claim against the fuel company.

67 As to the source of these funds Mr G says the sums paid to Mrs G were from the savings he had at separation, his service and TPI pensions and sale proceeds of properties paid into the National Australia Bank account. This is an important issue because Mr G seeks repayment of these sums.

68 Mrs G disputes that Mr G paid sums of money to her from his own funds for her support and to assist her in her claim after the parties were separated. She says that immediately after separation her workers compensation payments from [the insurance company] were paid into the account with National Australia Bank over which Mr G had control. As the payments were received he paid part of them to her and retained part. She said that she later contacted [the insurance company] to inform them that she was not receiving the payments and they were made direct to her.

69 The amounts of money paid by Mr G to Mrs G did not exactly tally with the [the insurance company] payments received into the National Australia bank account. On

30 January 1998 a payment was received from [the insurance company] in the sum of

$4,900 for the 7 week period from 9 December 1997 to 27 January 1998. Mr G paid the sum of $4,900 to Mrs G by cheque number xxxx. When it was put to him that what he paid to Mrs G was in fact was the [the insurance company] payment which he had received on her behalf he disagreed, he said he only ever received two payments from [the insurance company], one a workers compensation payment and one an insurance rebate.

70 I consider it more likely than not that when Mr G had access to the [the insurance company] workers compensation payments, he paid part of the payment to Mrs G and retained part. I do not accept that the various payments he made to Mrs G were paid solely from his own funds.

71 I take into account that the parties enjoyed a reasonably good relationship after separation. I consider it more likely than not that Mr G paid money to Mrs G to assist her with her compensation claim in the belief that it would be repaid to him when she received the proceeds of her compensation claim.

72 I take into account that at this time Mr G received his pensions which were significant. Mrs G was unable to work and was entitled to receive [the insurance company] workers compensation payments.

Mrs G’s Occupation of S Street

73 Mr G purchased S Street from Bette in 2000 and permitted Mrs G to continue to occupy it. He prepared a rental agreement which she signed. Mrs G said the first time she saw the rental agreement was when it was presented to her lawyer. In evidence, when looking at the document, she said that the signature looked like hers but she did

not sign it and she indicated such a signature could easily be transferred by a computer. She said she paid some rent to Mr G to stop him nagging but there was no agreement and no obligation upon her to pay rent for her occupation of S Street. During 2005 she made fourteen payments of $150 to Mr G and paid the rates for the property totalling $2,821.

74 I did not believe Mrs G’s evidence in this respect. I consider it likely that she and Mr G entered into an agreement for her to occupy S Street and pay rent. I come to this conclusion because there would be no other reason for Mr G to allow her to occupy the property given that they were separated. He knew she was to be receiving a compensation payment and would be in a position to repay him. They were on good terms. I accept his evidence that she offered to pay rent and that they agreed in writing that she would do so.

75 Mr G says that after the roadhouse was sold debts were presented to him for payment which he paid using his savings and his pensions. I consider it likely that he did pay some debts. For a period of time he received the workers compensation payments and those funds were available to him to meet debt. I could not speculate as to the precise amounts paid from either the workers compensation payments or his own income but I accept that Mr G did meet some debts after the roadhouse had closed.

Mr G claims a further contribution in that after Mrs G vacated S Street in April

2006 he expended various sums on its repair and improvement totalling $3,675.05. He seeks repayment of this sum from her. I intend to treat it as a contribution rather than order repayment.

76 Mr G claims he also met all of the outgoings in respect of the properties at the Highway, E and N Street after separation without contribution from Mrs G. I accept that he did meet those outgoings from funds available to him although I cannot determine the source of those funds, whether it be the workers compensation payments he received, his service pension and TPI pensions or funds derived from the sale of joint property.

77 Mr G claims a greater percentage based on contribution after separation.

78 As to Mrs G’s contributions, she maintains she contributed equally with Mr G after separation excluding the compensation payment. There was no evidence about her contributions to the asset pool after separation except her compensation payment. She was unable to work and suffered ill health as a result of the accident.

Mrs G’s Compensation Payment

79 Mr G paid sums of money to Mrs G which he said were advanced to her to enable her to pursue her claim.

80 I consider that Mr G contributed to the compensation payment by providing financial support to Mrs G after separation, subject to the finding I have already made that some of those payments were derived from the workers compensation payments which Mrs G was entitled to receive. Mr G permitted Mrs G to occupy the S Street property while pursuing her claim and he paid for repairs and improvements to it once

she vacated the property. If these sums are not repaid to Mr G they represent a contribution by him.

81 The cost of two medical reports were paid from the National Australia bank account.

82 I do not intend to order that Mrs G repay any sums to Mr G by way of financial support given (that is the amount of the judgment) or by way of rent, repairs or replacements or reimbursement of sums paid. These were not arms length transactions. The parties, although separated maintained financial ties and good relations. These payments will be recognised as contributions by Mr G.

Play Money

83 I have already referred to the parties’ dealings with funds of the roadhouse. Mrs G admits that funds were diverted to the family’s personal use and therefore not disclosed in the accounts of the business.

84 On the face of it the amounts were significant as is evidenced by the purchase of jewellery. Mrs G was shown receipts for the purchase of jewellery, gold and gems totalling $43,822. Her evidence was that most of the items were purchased while in North-west and purchased with the “play money”. Also funded with “play money” was a trip overseas and $18,000 for Bette’s wedding. All of these were funded from income earned at the roadhouse which was not banked, not disclosed in the accounts. I considered whether this should be reported to the Australian Taxation Office. The Full Court in Malpass & Mayson (2000) FLC 93-061 expressed the view that there is not always a duty to report a breach, saying:

“Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities.”

85 As the amounts were significant I consider I am duty bound to refer this judgment and the affidavits of Frances and Bette to the Australian Taxation Office.

86 The direction not to bank or deal with funds was that of Mrs G. Mr G was aware of it. There may be a liability to the Australian Taxation Office.

Assessment of Contributions

87 Post separation Mrs G made a significant financial contribution by way of her compensation payment. Mr G contributed to that payment by supporting Mrs G financially and allowing her to occupy S Street property. These sums will not be ordered to be repaid to Mr G.

88 Mr G accepted responsibility for and paid the business debts after separation and met the repayments and outgoings in respect of the parties properties. He applied his

income from his service and TPI pensions to these purposes. He had access to Mrs G’s workers compensation payments for a period of time and also the proceeds of sale of jointly owned properties.

89 I consider that post separation Mr G made a greater contribution in preserving and maintaining the assets of the parties. It appears to me that apart from her compensation payout, post separation Mrs G was able to make little contribution to preserving assets except for part of her workers compensation payments which Mr G diverted to various purposes. Mr G had the greater income by way of his pensions. Mrs G did not have the financial ability to meet the necessary expenses pertaining to the jointly owned properties.

90 In terms of the matrimonial pool at trial, Mrs G’s contribution equates to the equity in her home and the legal fees added back. Mrs G made no contribution to the equity in Mr G’s property at H Street or legal fees added back on behalf of Mr G. She may have contributed to the sale proceeds of S Street if any part of the sale proceeds of jointly owned properties were applied to its acquisition.

91 Exercising the broad discretion that I have and balancing Mrs G’s contribution of the compensation payout, with Mr G’s contribution preserving and maintaining joint assets and his contributions to the compensation payout, I conclude that the overall percentage based on contributions should be assessed 55% to Mr G and 45% to Mrs G.

Section 75(2) Factors

92 I now turn to consider whether there should be any adjustment to the percentages as a result of the factors set out in s 75(2) of the Act. My findings as to the factors which are relevant are set out below.

93 Mr G is 64 years of age and Mrs G 63 years of age.

94 Mr G is totally and permanently incapacitated and entitled to a TPI pension. He also receives an indexed linked service pension together with medical benefits and other advantages. He is unable to work.

95 Mrs G is employed as a cleaner and her earnings are $807 per week gross. She is close to retirement and her earning capacity is said to be limited taking into account her age and the type of work she is currently doing.

96 Mr G has recently undergone [extensive] surgery and is due to undergo [further surgery] in 2010. Frances is his carer and stays with him to assist him from time to time.

97 Mrs G will have to rely on Centrelink benefits when she is no longer in employment. She has a number of health issues including high blood pressure and cholesterol problems as well as back problems and a poor nervous system. It is thought she suffers from post traumatic stress syndrome.

98 Mrs G is prescribed anti depressant medication and clearly her working life is limited.

99 Mr G has no superannuation benefits. Mrs G has minimal superannuation benefits.

100 The parties are of similar ages and both have health issues.

101 Mr G’s TPI and service pension is a guaranteed index linked income for life.

This is a significant benefit to him which has associated benefits by way of home loan and medical entitlements. The most significant factors therefore are:

• The incapacity of both parties

• Mr G’s TPI and service pension entitlements

•The desirability of both parties having a decent standard of living and secure accommodation.

102 Taking all matters into account and exercising the very wide discretion which I have, I consider that an adjustment of 10% in favour of Mrs G is justified. This would bring about an outcome whereby she receives 55% of the assets and Mr G receives

45%.

Just and Equitable

103 As the final step in the process I am required to consider whether or not the outcome of the assessment of contributions and the adjustment on account of Section

75(2) factors brings about a result that is just and equitable. The net asset pool is
$512,101.

104 Mr G will receive or retain net assets totalling $230,445 and Mrs G will receive or retain net assets totalling $281,655. To give effect to this division the funds held in trust in the name of SV Phillips and Co will be divided between the parties.

105 Mr G will also receive some personal items, the value of which is unknown.

106 At present Mr G’s net assets total $216,600 and Mrs G’s net assets and superannuation (including the [Japanese] motor vehicle which will be transferred to her) total $261,428. The Trust funds will be divided $13,845 to Mr G and $20,227 to Mrs G. Any accrued interest should be divided 55% to Mrs G and 45% to Mr G.

107 The circumstances of both parties are modest. Each party has a home and a motor vehicle. Both have a home loan. The Trust funds emanated from the sale proceeds of S Street, which Mr G purchased after separation. His perception was that the funds belonged to him. I did not make that finding. When I consider that Mr G is in a stronger economic position than Mrs G by reason of his guaranteed income for life, I consider that the percentage division, and the consequential division of the Trust funds to achieve it, is just and equitable.

ORDERS

108 Subject to hearing from Counsel the orders which I propose to make are as follows:

1. The right title and interest of the Husband, if any, in the property at

F Street, vest in the Wife absolutely.

2.The right title and interest of the Wife, if any, in the property at H Street, vest in the Husband absolutely.

3.Within fourteen days of orders the Husband do all acts and execute all documents necessary to transfer to the Wife the registration and all of his right title and interest in the 1997 [Japanese] motor vehicle.

4.Within fourteen days the Wife make available for collection by the husband or his nominee the following items:

1 x ceramic finals football 1992;

1 x ceramic finals football 1994;

1 x Allied Pickford box containing boxed collectable cars including the racing cars.

5. The sum at credit of the Commonwealth Australia Bank Cash

Investment Account, Account Number xxxxxxxx in the amount of
$34,073 be divided $13,840 to the Husband and $20,227 to the
Wife and any accrued interest be divided 45% to the Husband and
55% to the Wife and the solicitor for the Husband, S V Phillips and
Co. cause the funds to be distributed accordingly

6.There be an injunction and the Husband be permanently restrained from pursuing further action in the Magistrates Court Civil General procedure claims against the Wife.

7.Any right, title and interest of the Wife if any, in the Husband’s service and TPI pensions vest in the Husband absolutely.

8. Unless otherwise stated in these orders:

(a) The parties each be declared to be the sole beneficiary and absolute legal owner of all other items of personal property presently in their possession, custody or control of each of them including but not limited to motor vehicles, furniture, furnishings, appliances, jewellery and personal effects;

(b) The parties indemnify each other in respect to monies owing to any other person or bodies in respect of the items in their possession, custody or control;

(c) The parties each retain and be declared the sole beneficial owner of any monies standing to the credit of any bank, building society or any credit union currently in their sole name; and

(d) The parties each forego any claim against any superannuation and/or life insurance policies including the contributions, entitlements and benefits held by, for or on behalf of the other party and that each party be declared to be the sole beneficial owner of such policy held in their respective names.

9. The Applicant and the Response be otherwise dismissed.

I certify that the preceding [108] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary