Graham & Clare

FAMILY COURT OF AUSTRALIA

Graham & Clare

[2007] FamCA 829

FAMILY LAW - PROPERTY - Significant initial contribution by one party – allegations of unequal non-financial contributions during the relationship – post separation contribution

APPLICANT:

Mr Graham

RESPONDENT:

Ms Clare

FILE NUMBER:

HBF

1098

2005

DATE DELIVERED:

17 August 2007

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

14 & 15 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Brown

SOLICITOR FOR THE APPLICANT:

Bishops

COUNSEL FOR THE RESPONDENT:

Mr Welch

SOLICITOR FOR THE RESPONDENT:

Phillip Welch

Orders

THAT within sixty (60) days of the date of these orders the wife pay to the husband the sum of $51,102.15.
THAT within sixty (60) days of the date of these orders and contemporaneous with the payment referred to in order 1 above, the husband shall do all acts and sign all documents to transfer to the wife the whole of his right, title and interest in property situate at and known as G Road, B in Tasmania being the property referred to in Certificate of Title Volume … Folio 1 (“the home”).
THAT the wife shall pay and indemnify the husband in relation to all outgoings in respect of the home including mortgage repayments and the capital outstanding under the mortgage to the ANZ Bank with regard to the home (the amount outstanding under that mortgage being about $1,498.00).
THAT within sixty (60) days of the date of this order and contemporaneously with the payment referred to in order 1 and the transfer referred to in order 2, the wife shall cause the mortgage over the home to the ANZ Banking Group to be discharged.
THAT the husband transfer to the wife his interest in the following property:-
5.11981 Nissan Navara motor vehicle;
5.2Household furniture and effects used jointly by the parties but now in the possession or control of the wife;
5.3any monies at banks, credit unions or savings account in the sole name of the wife;
5.4the horses and cattle in the possession of the wife;
5.5plant and equipment in the possession of the wife.
THAT the wife transfer to the husband her interest in:-
6.1the household furniture and effects formerly used by the parties jointly but now in the possession or control of the husband;
6.2any monies at banks, credit unions or savings accounts in the sole name of the husband;
6.3the farm equipment in the possession of the husband;
6.4the Yamaha Grizzly motor cycle in possession of the husband;
6.5the Harley Davidson motor cycle and motor cycle trailer in possession of the husband;
6.6the Ultralight Aircraft registered number … in the possession of the husband;
6.7the Ford falcon motor vehicle in the possession of the husband;
6.8the monies owed to the husband by his brother (contained in his brother’s Viridian Loan account);
THAT each party shall sign all documents and do all acts and things reasonable required to give effect to the terms of these orders.
THAT unless otherwise specified in these orders:-
8.1each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such parties as at the date of these orders and that for this purpose the bank accounts are deemed to be in the possession of the person whose name appeared on the bank records, insurance policies are deemed to be in the possession of the beneficiary, superannuation entitlements are as disclosed and described as being the property of the respective parties during the hearing.
8.2each party is solely liable for and indemnify the other against any liability encumbering any item of property to which the parties are entitled pursuant to these orders.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF1098 of 2005

Mr Graham

Applicant

And

Ms Clare

Respondent

REASONS FOR JUDGMENT

BACKGROUND

These are proceedings between Mr Graham (“the husband”) and Ms Clare (“the wife”). The proceedings relate to property adjustment between the parties.
The husband claims that the property of the parties ought to be divided as to sixty per cent to the wife and forty per cent to him, except for a sum of between $16,000 and $18,000 accumulated by him in the last 12 months, and which he claims should be attributed and assigned to him. Further, he seeks orders that the former matrimonial home at G Road, B (“the home”) be either transferred to him or sold with both parties being entitled to bid for the property using the same approach I adopted in Essex & Essex (No. 2) [2007] Fam CA 639. The husband submits that there should be an adjustment of ten per cent in the wife’s favour in regard to the contribution factors and no adjustment in relation to the other factors.
The wife seeks orders that the property be divided as to eighty per cent to her and twenty per cent to the husband. This is on the basis of an adjustment in her favour of twenty five per cent in terms of contribution factors and a further adjustment of five per cent in relation to the other factors. She seeks an order that she be able to retain the home.
Apart from the issue regarding the disposal or transfer of the home there are issues as to ownership and existence of some milled timber, the treatment of an add back claimed by the wife in relation to a joint bank account in the control of the husband and used by him after the date of separation. There are issues relating to the treatment of the money saved by the husband post separation (which he asserts amounts to be between $16,000.00 and $18,000.00), the agreed loan of $6930.00 of the wife from her mother in terms of whether it is to be repaid, the treatment of the husband’s 2004 income tax assessment of $7,562.00 (which is now $8,228.00 with interest) and the value and extent of the husband’s superannuation entitlements.
There are issues about the adjustments on a contribution basis and the other factors.
In these reasons a statement of fact constitutes a finding of fact unless otherwise indicated
The husband was born in December 1959 and is aged forty seven. He employed by a Local Council, in a professional capacity earning about $85,000 per year, plus a car and 12.5% employer paid superannuation contributions. The wife was born in April 1964 and is aged forty three. She is an academic and earns about $71,000 per year.
The parties commenced cohabitation in 1999. They married in January 2002 and separated in October 2004. The parties’ marriage was dissolved in March 2006.
There are no children of the marriage and neither party has children from previous relationships. There is agreement that their relationship subsisted for about five years. The wife has occupied the home since separation and the husband has lived in various rental accommodation since that time.
The principles to apply
The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) [(2003) FLC 93-143] at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s79:
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4) (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4) (d), (e), (f) and (g), (“the other factors”) including, because of s.79 (4) (e), the matters referred to in s.75 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40. Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”
Thus the approach in this case involves a number of steps:-
(a)The identification of the property and its value;
(b)
An evaluation of the parties’ contributions having regards to

ss 79(4)(a)(b) & (c);
(c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and
(d)A review of the outcome against a just and equitable requirement.
CREDIT OF THE PARTIES
Each of the parties raised the question of credit of the other party in these proceedings.
In terms of the husband, he deposed in paragraph 31 of his affidavit sworn 6 September 2006 (“the husband’s affidavit”) that he has been largely unemployed since July 2003. In cross-examination he agreed that in the 2003/2004 financial year he earned income of about $55,861.00, and the 2004/2005 financial year he earned income of about $5,537.00 but this included fees from his skills as a professional … of about $16,000.00 which was largely consumed in expenses (including depreciation) and in 2005/2006 he earned about $26,802.00.
The evidence before me was that he entered into an agreement on 14 August 2006 with B Council to be employed as a professional … with an income as set out above. That agreement and his employment is inconsistent with what the husband said in his affidavit at paragraphs 31, 32, 33, 36, 38 and 39. The husband did not notify the wife, did not inform her of his change of employment circumstances nor did he discover the agreement in the discovery process.
Once the husband commenced full time employment pursuant to the agreement, he commenced to contribute sums of about $1,000.00 per fortnightly pay into his brother’s Viridian loan account. He continued to make these payments until about eight to ten weeks prior to the hearing. He did not voluntarily disclose this asset to the wife. The husband gave evidence that he would not have voluntarily disclosed to the court or his wife the savings in the Viridian line of credit in the name of his brother. It is not clear precisely how much was transferred by the husband to the Viridian line of credit and there is no objective evidence of to the expenditure of between $12,000.00 and $14,000.00 alleged by the husband. The husband was required to make discovery and did not either at that time or later did he disclose these documents.
The husband and wife entered into an agreement at the time they commenced cohabitation; in this agreement they listed their assets and liabilities at that time. One of the husband’s assets was a Harley Davidson motor cycle and trailer which the husband asserted had a value of $16,000.00. This was at the same time as he was negotiating property settlement with his previous wife where he asserted to her for the purpose of that property negotiation that the value of the motor cycle was $7,000.00.
The evidence of the husband was also that he delayed in electing to be named on the title to the home as he was concerned that it may impact on the property settlement with his previous wife.
The evidence of the husband is not reliable and was self serving. He exaggerated contributions, particularly those in respect of the work around the home and at times seems to fashion his evidence to meet the particular end he sought, such as his self diagnosis of medical conditions. He is an unreliable historian.
As to the evidence of the wife, it was sometimes self serving and at one stage she endeavoured to blame her solicitor for not updating the circumstances regarding the mortgage repayments. In her financial statement she claims she was making the mortgage repayments when she was not doing so. The wife, from time to time, seemed to understate the contributions by the husband.
On balance, however, I generally prefer her evidence to the husband’s as it seemed from time to time supported by objective material and generally more reliable. She was not shaken in cross- examination and from time to time made concessions against her interests.
Identification of property and its values
There are various issues about the identification of the property. However, there is general agreement as to the property, except as is discussed in these reasons.
Assets
G Road, B (agreed value)  $425,000.00
Horses owned by wife (agreed value)  $1,100.00
Wife’s household furniture (agreed value)  $4,870.00
Plant and equipment in wife’s possession (agreed value)            $1,545.00
Nissan Navara (agreed value)  $4,350.00
Wife’s ANZ bank account (agreed value)  $794.00
Husband’s ultra-light aircraft (agreed value)  $17,000.00
Husband’s horse (agreed value)  $100.00
Husband’s Harley Davidson motor cycle (agreed value)             $6,500.00
Husband’s motor cycle trailer (agreed value)  $1,250.00
Yamaha Grizzly motor cycle (agreed value)  $3,600.00
Husband’s household furniture (agreed value)  $6,110.00
Husband’s plant and equipment (agreed value)  $11,000.00
Husband’s Ford falcon (agreed value)  $600.00
Milled timber (see reasons)  Nil
Husband’s investment through his brother’s loan
account (see reasons)  $18,000.00
Husband’s savings   $2,792.00
Add back with regard to husband’s savings at
separation as against his taxation liability for 2004
financial year (see reasons)   nil
Wife’s superannuation (agreed value)  $259,424.00
Husband’s superannuation (agreed value insofar as those
Accounts were concerned)  $115,994.00
TOTAL assets  $880,029.00
Liabilities
ANZ home loan (agreed value)  $1,498.00
Wife’s ANZ visa (agreed value)  $976.00
Liability to D (agreed value)     $760.00
Liability to F – service fee (agreed value)  $3,020.00
Loan from wife’s mother      $6,930.00
TOTAL liabilities  $13,184.00
NET PROPERTY  $866,845.00
In terms of the home, I raised with counsel for the parties early in the proceedings whether I should follow the approach I adopted in Essex & Essex (No. 2) [2007] Fam CA 639. The husband’s counsel indicated her client was content with that approach but the wife’s counsel was of the view that the facts in this case differed from the facts in Essex.
The evidence of the husband was that he had initially sought that the home be transferred to the wife and had since changed his mind. In evidence the husband said that he had an emotional investment attachment to the home and wanted to keep it. This must be seen in the context of the reservations I have about the quality of his evidence and the approach initially adopted by the husband that the house should be left to the wife.
The husband presently lives and works at a coastal town and it is at least a two hour each way trip from the home and his employment in the coastal town. The husband will be in his present employment, subject to the usual exigencies of life, until at least August 2009. The husband says that he would endeavour to try and find employment in the Launceston area and he could then live in the home, yet he claimed in 2006 about the difficulties of finding employment, see paragraphs 31, 32 and 33 of the husband’s affidavit. The husband present employment puts him in the best financial position with regard to income since before the year 2000. The husband’s expressed wish for the home is also must be seen in the context of him proposing to develop a residential home for himself in the coastal town area in 2006 and/or 2007. I have reservations about whether the husband’s is bona fides in respect of his desire to keep the home.
It is clear the husband did undertake work on the home during the course of the marriage (I will deal with this issue later in these reasons).
The wife has lived in the home since separation and her evidence is, which I accept, is that she loves the home and loves living there, she has been there for eight years and that it suits her very well in terms of work, recreation and lifestyle. The home is situated about a twenty eight minute drive from her place of employment and it is convenient with regard to her sporting activities. The wife no longer competes in events but continues to have an interest in that recreation. She has six to eight sets of neighbours in the area with whom she has a friendship and who provide assistance to her in terms of her illness and community. She feels secure in that community and is a part of that community. The wife has at all times since separation wanted to keep the house.
I find that the wife would suffer prejudice if she was forced to leave the home and that the husband is ambivalent about living at the home.
The value of the home is agreed. There is an issue as to whether the home is kept in good order and condition and the surrounding lands are kept in good repair. The husband says the property has lost some value as the weeds have not been cleared and it has fallen into disrepair. The single expert land valuer, Mr C, observed in his valuation dated May 2006 that:-
“Grounds surrounding the house as at the date of inspection were generally unmaintained and there is no sign of recent pasture improvement. The house and property would benefit from general maintenance”.
In his updated report[1] Mr C said of the property:-
[1] Exhibit H4 dated 13 August 2007
“Since our last inspection the following changes to the property have occurred:-
- removal of non-operative dishwasher
- cracking and lifting of floor tiles in living room.
During our inspection the improvements appeared to be in fair condition internally and externally however the grounds remain overgrown”.
The evidence of the wife is that she was away for three months this year and that the ground became overgrown over that time. Further, there is no evidence that the value of the home has been diminished by its present state. It was always open for the husband to ask the single expert to provide a valuation on the basis that the property was in better repair. That evidence was not provided.
On balance, it seems to me just and equitable in the circumstances of this case that the wife should be able to retain the home at the value agreed between the parties. That valuation has increased from $390,000.00 in 2006 to $425,000.00 at the time of the hearing. I will be making orders that the home be transferred to the wife at the present value and in specie.

In respect of the superannuation, neither party sought a splitting order and both the parties agreed that the superannuation should be contained in the one property list.
There was an issue as to extent of the husband’s superannuation entitlements in that there may have been another fund, that assertion was not pursued. The husband was cross-examined in respect of same. I am satisfied on the evidence that his superannuation is in the form of two accumulation funds which have an agreed value as at hearing of $115,994.00.
As to the wife’s superannuation, the evidence was that it is an accumulation fund and as at the first day of hearing it had a value of $259,424.00. The wife tendered in evidence business records from her superannuation fund trustee which shows that the wife has made considerable employer contributions since separation in October 2004. I have had regard to the capital contributions made by the wife’s employer since separation. In the period from 1 July 2006 to 30 December 2006 contributions were made on behalf of the wife in the sum of $9,184.24. For the period 11 January 2007 to 27 July 2007 the contributions appear to total about $10,969.00. The contributions over that thirteen month period are about $20,000.00.
There was an issue as to the wife making direct contributions to the superannuation fund and the wife was criticised in that regard. I am satisfied that the wife does not thoroughly understand the nature of contributions to the superannuation fund and further the evidence is not clear whether the employer contributions are made by way of the 9% compulsory contribution and an additional contribution by the employer and/or the wife. In any event, I find that the wife made substantial capital contributions to her superannuation fund (either through her employer or directly) between separation in October 2004 and the date of the hearing. I have had regard to those post-separation contributions in considering contributions.
The wife’s mother provided an affidavit in which she said lent the wife $7,600 to pay out a credit card debt in the same amount. The wife’s mother said that she expected repayment of that loan. Arrangements were put in place to telephone the wife’s mother, who lives in the United Kingdom. This call was to be to enable cross-examination. However, counsel for the wife said that, on instructions, he was instructed by the wife not make her mother available for such cross-examination by those means because of the later hour in the United Kingdom, viz 10.45pm. Counsel for the husband indicated they were content for the cross-examination to be by telephone. The refusal of the wife to make this witness available for cross-examination impacts on the weight I can give such evidence. In these circumstances I infer that such cross-examination would not have assisted the wife.
There is no issue that the wife borrowed $7,600.00 from her mother to repay the credit card debt. The question is whether the debt is likely to be repaid. The evidence of the wife was that she had reduced the debt by $670.00 and it is now at $6,930.00. The wife was cross-examined as to her mother’s financial circumstances and she agreed that her mother was not well off. It does not follow that the loan would not be repaid bearing in mind the circumstances of the wife’s mother. The wife’s evidence was that she anticipated needing to borrow more money at the conclusion of these proceedings and then she will be able to include in those borrowings the repayment of this debt to the mother. I am satisfied that the money was provided by the wife’s mother to pay out a credit card debt. I find that the wife borrowed $7,600.00 from her mother and that she has repaid $670.00 of that sum. On the evidence I find that this is a debt due by the wife to her mother and is likely to be repaid after the finalisation of these proceedings.
Both parties submitted to me that their legal costs were approximately the same and neither sought an add back in respect of such costs, I accept those submissions.
There was an issue as to how to deal with savings totalling $11,099.04 at the date of separation. The husband retained this account and has used it for his own purposes. The wife sought an add back of that sum to set off against the husband’s tax liability from the 2003/2004 financial year. The husband conceded that he had the joint savings of $11,099.00 at the time of separation. He said that that sum was applied to his general living expenses after separation during the time when he had limited employment.
The tax liability was initially $7,562.00 and with interest, penalties and some repayments by the husband it is currently $8,228.00. The husband said that he did not pay his 2003/2004 income tax assessment as he wanted to keep it in place so it could be taken into account in property settlement.
The husband agreed in cross-examination that it would be fair that the tax should be set off against the savings. In re-examination he resiled from this approach and in submission his Counsel said that the savings ought not to be added back and the whole debt should be included against the property.
The husband had the opportunity to repay the debt to the taxation department and chose not to do so. He had not paid that debt where he spent $12,000 to $14,000 on an unsuccessful development proposal he funded with his brother with regard to land at the coastal town. He had the ability to use the savings to pay the tax bill, but choose not to do so.
In Zalewski & Zalewski (2005) FLC 93-241, in the majority decision of Coleman and Boland JJ, they approved the approach adopted by the Full Court in Prince & Prince (1984) FLC 91-508 at pages 79,076 and 79,077 where the Full Court said in that later case:-
“The Court can make an allowance for a particular liability if appropriate to do so. In some cases there are sufficient uncertainties as to the alleged liability to lead the court to disregard it entirely or partly eg: a loan from a parent or a party not likely to be enforced – Af Perersons [(1981)] FLC 91-095]; [Q and Q] [(unreported, Family Court of Australia. Evatt CJ, Asche & Lambert JJ, 29 June 1983)].
“In other cases, the Court may take the view that because of the circumstances surrounding the incurring of the liability it ought in justice and equity to be wholly or partly disregarded in determining the appropriate order under s79.
The taxation debt was properly incurred and the husband had the capacity to meet the debt at the time of and since separation. Accordingly, at least the charges of about $700.00 ought not to be allowed. In all of the circumstances and having regard to justice and equity between the parties I propose to disregard the taxation debt.
With regard to the sum of $11,099.00, this must be seen in the light that each party had assets available to them at the time of separation and I do not, in the circumstances of this case, find this to be an interim property division and I do not propose in the circumstances to add it back.
There was an issue regarding milled timber. The wife asserted that there was significant timber which had been milled which had some value. The husband contended that he milled some timber from the parties. This timber was used on improvements to the property. He said that the balance of timber belonged to his step-father. The wife said in cross-examination that some timber was cut for the property improvements from logs made available by the husband’s step father. It is not clear what timber was used for what part of the property improvements. There is no evidence of timber being sold by either of the parties. The husband denies selling any timber. He said that some timber was made available by his step father which was returned to him. There is no evidence before me by which I can determine the value of the timber of the parties nor can I identify that it was used other than at the parties’ property. Accordingly I make no allowance in that regard.
I have included in the property list the money saved by the husband and kept in his brother’s Viridian account. The husband did not make full and frank disclosure of these savings, as he was required to do under the rules. He has provided no objective evidence of his expenditure and his evidence is vague. I find that the husband has post separation savings of $18,000 invested in his brother’s said account. It was open for me to adopt an item by item approach in respect of the property. However, bearing in mind the contributions of the wife in terms of superannuation and that of the husband in superannuation since at least August 2006 and the savings since that date I propose to use a global approach.
Contributions
The parties entered into an agreement in December 1999 in which they set out their assets and liabilities. They agreed with the value of all of those assets and liabilities except for:-
(a)    the wife said the husband’s Harley Davidson motor cycle and trailer had a value of $7,000 not $16,000. The husband said this was based upon an offer he had received for the motor bike at that time. The husband admitted in cross-examination that he valued the same motor cycle at $7,000 in the context of his negotiations for property settlement with his previous wife. The husband should be estopped from asserting other than that $7,000 valuation, he should not be able to gain an advantage by his failure to inform his former wife of the motor cycles true (if that be the case) value. He relied on a value at that time of $7,000 in those negotiations and he should be held to it. The wife was criticised for not challenging the valuation of the Harley Davidson motor cycle at the time that the agreement was entered into, her response was that she trusted the husband, I accept that evidence of the wife;
(b)    the wife says that her superannuation was valued at $16,500. The husband agreed that was in fact valued, at that time, at $51,843.50.
(c)    there was an issue in respect of $10,000.00 claimed on the wife’s side of the ledger, for research equipment including coring gear, GPS, and cameras valued at $10,000.00 and computers, printers and modem at $6,000.00. The husband said that since that time the wife claimed that it was owned by her employer. With regard to the GPS this became redundant soon after the relationship commenced and it was eventually sold at a garage sale. The camera was damaged during the marriage and could not be repaired. The coring gear was “wrecked” by students. The wife said, and I accept, that property was purchased by her prior to 1999. The confusion arose in that subsequent to that time the wife has been provided with replacement coring gear, camera and GPS by her employer. I accept her evidence that she had this equipment at the commencement of cohabitation in accordance with the agreement.
(d)    There is a question as to the deposit of $2,500 that was paid on the purchase of the home. The husband said the deposit came from his bank account and was given to the wife who handed it over to the agent. The wife said says that she paid the deposit but could not recall whether it came from the husband. On balance I am satisfied that it came from the husband.
I am satisfied that the assets of the wife at the commencement of cohabitation were:-
Assets
-       wife’s bank account  $101,707.00
-       loan to the husband  $9,000.00
-       First State shares  $14,158.00
-       Telstra shares  $5,334.00
-       Dampier salt loan  $3,150.00
-       University debt  $1,457.00
-       Nissan Navara  $15,000.00
-       horse float  $2,400.00
-       furniture  $5,000.00
-       property at K, Qld   $206,500.00
-       horse and saddle  $2,000.00
-       superannuation with Uni Super  $51,844.00
-       research equipment  $10,000.00
-       computer, printer and modem  $6000.00
-       ski equipment           $400.00
TOTAL assets  $433,950.00
Liabilities
-ANZ mortgage with respect to property
at K  $206,000.00
-       unpaid tax        $3,100.00
TOTAL liabilities$209,100.00
BALANCE  $224,850.00

The husband had the following property at the commencement of cohabitation:
Assets
-       deposit on home  $2,500.00
-       bank account & available cash  $4,610.00
-       Family Court settlement proceeds  $25,000.00
-       cash loan owed by mother  $4,250.00
-       travel allowance  $126.00
-       Ford falcon  $1,000.00
-       Harley Davidson motor cycle  $7,000.00
-       Yamaha YFM 600  $8,000.00
-       household furniture & effects  $7,900.00
-       tools  $5,000.00
-       boat and accessories  $7000.00
-       Ultra-light aircraft  $20.00
-       firearms  $3,000.00
-       superannuation  $21,650.00
-       trailer  $800.00
-       Hi-fi stereo  $3,000.00
-       GPS   $500.00
-       saddle  $400.00
TOTAL  $101,756.00
Liabilities
-       Commonwealth Bank loan  $4,000.00
-       personal loan from wife  $9,000.00
-       unpaid tax  $1,585.00
-       Lawyers accounts  $3,750.00
Total  $18,335.00

Net property at the commencement of cohabitation $83,421.00

The initial contributions by the wife were far greater than those of the husband, she provided in excess of 70% of the property at that time.
Shortly after commencement of cohabitation, the parties purchased the home for $218,515.00. The wife provided about $100,000.00 toward this purchase price, the husband provide about $13,000.00 (bearing in mind he was indebted to the wife at that time in the sum of $9,000). The balance of the purchase price was provided by a loan from the ANZ Bank of about $106,200.00. The wife sold her Telstra shares and applied the proceeds of $4,277.00 directly to that loan. She realised her First State shares and credited the sum of $16,367.00 against the housing loan. In addition the wife, in 2002, sold her Queensland property and applied the net proceeds of sale of the property of about $7,000.00 towards family expenses.
In terms of the assets of the wife at the commencement of the relationship she provided significant amounts of those to the acquisition of the home and used other assets such as the proceeds of the sale of the Telstra shares and the Colonial State shares towards reduction of the mortgage. Of the balance of about $100,000.00 remaining, $51,844.00 was in superannuation and the other in furniture, furnishings, motor vehicles etc.
During the course of the marriage the wife consistently earned greater income than that of the husband. This was particularly the case in 2003 to 2004. I accept the wife’s comparison of the income of the parties set out in paragraph 38 of her affidavit. The further evidence of the husband was that his taxable income in the 2004 financial year was $55,861.00, his income in the 2005 financial year was $5,537.00. In the 2005 financial year the husband was operating a consulting business and it had a turnover of about $16,000.00 but all of this was applied towards business expenses. In 2006 the husband had a taxable income of $26,802.00. The husband has not lodged his 2007 income tax return, however bearing in mind his employment arrangements from August 2006 his income for that year would be in excess of $70,000.00.
There was significant argument about the non-financial contributions claimed by the husband including that set out in paragraphs 14 and 15 of his affidavit. The wife conceded that there was an element of accuracy in terms of that evidence but that there was exaggeration. There was a dispute between the parties as to the amount of work, who paid for much of the work and the impact of the work on the premises. I generally prefer the evidence of the wife to the husband in that regard.
There was an issue as to the assistance the wife gave to the husband in terms of setting up and running his consulting business. In that regard I prefer the evidence of the wife.
There was an issue as to the assistance the husband offered the wife with regard to her work as an academic. With regard to this evidence I prefer that of the wife to the husband.
The wife asserted she undertook greater role in domestic duties than that of the husband. The husband said the domestic chores were divided equally. The wife gave evidence that she did most of the cooking so she could manage her diabetes. This was why she did the shopping. On balance I prefer the wife’s evidence in that regard.
The husband applied $36,000.00 of the parties’ assets during the course of the marriage to buy an Ultra-light aircraft. That amount is not in dispute. There is a dispute as to the $10,000.00 which the wife asserted the husband spent on the
aircraft. There is no evidence before me as to the amount spent on the aircraft apart from the various bland assertions of the parties. I am satisfied that the husband spent no more than $10,000.00 on that aircraft.
The husband received a lump sum on termination of his employment during the course of the marriage and he applied this sum to family funds. Each of the parties provided direct and indirect non-financial contributions. I am satisfied that during the course of the marriage these non-financial contributions were relatively equal.
In terms of the financial contributions during the course of the marriage the husband asserted that he was the principal provider of the mortgage payments. This must be seen in the context that the wife earned a greater income than him and there is no suggestion that her income was applied other than from the benefits of the parties. In terms of the direct financial contributions during the relationship I find that the income of the wife was greater than that of the husband throughout the relationship and up to the husband commencing employment in August 2006.
In considering the contributions I have had regard to the principals set out by Kay J in Farmer & Bramley (2000) FLC 93-060 where he said:-
“68.The Court’s task is to evaluate all of the contributions from the time of the commencement of the parties relationship until the time of hearing give such weight to such contribution as the Court thinks is appropriate in the circumstances”.
In undertaking this task I have made assessments in accordance with s79(4)(a)(b) and (c). I have had regard to the contribution by the parties prior to the commencement of the relationship, during the relationship and from the date of separation. I have made findings that the wife’s contributions at the commencement of the relationship were far greater than that of the husband. I have found the wife’s contributions in terms of income during the relationship were greater than the husband and I am satisfied that the parties worked hard to build up their asset base in the hope of a future life together.
In terms of the initial contributions I have had regard to the principals set out in Pierce v Pierce (1999) FLC 92-844 where the Full Court said at page 85,881:-
“28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution”.
In this case the use of the wife’s savings made a substantial contribution to the purchase price of the home and the sale of shares made a substantial reduction to the home mortgage. The proceeds of the sale of the Queensland property were applied to family funds, and I accept that it was used in the improvements to the home.
In terms of contributions, the wife submitted that the parties had the use of the income from the home in Queensland. On the material before me it seems that the mortgage on the home was about $206,000.00 and that the income on the home was about $1,200.00 per month. It is likely that this property would have attracted either a small loss or a small profit and there would not have been any significant income contribution. The property did provide a $7,000.00 capital contribution when it was sold in December 2002 and where the wife received a balance of $7,255.93 which was deposited into the joint accounts of the parties.
Post separation contributions

As to post separation contributions the husband obtained employment in August 2006 and paid about $1,000.00 per fortnight into his brother’s Viridian account. This amount eventually came to about $30,000.00 of which all bar $18,000.00 was spent on the development of an unsuccessful proposal of a property at the coastal town between the husband and his brother. This is a post-separation asset to which the husband has made significant, if not, whole contribution. The evidence of the husband was that he and his brother were looking to buy land to build a home on the East Coast. The husband later agreed that the land was also to be used as an air park. He put money into his brother’s account and at least $12,000.00 of that money was used to fund this speculative land development from which the husband and his brother recently withdrew.
The evidence of this savings and expenditure of the husband was not disclosed by him until shortly before the trial and in circumstances where the wife issued a subpoena. The husband agreed in cross-examination that he would not have disclosed those savings but for the discovery of that information. Having regard to the authorities in this respect I am comfortable in determining that the husband had savings of $18,000.00 which were accumulated after he obtained employment in August 2006.
The wife has had the occupation of the former matrimonial home to the exclusion of the husband since separation. For a period of time she paid modest loan repayments but these ceased prior to December 2006. The wife’s superannuation has increased significantly since separation by virtue of her employer contributions. During the marriage both parties applied their income and assets for the mutual benefit of the parties.
In a financial sense, since separation, the husband has accumulated $18,000.00 (and spent on a development between $12,000.00 and $14,000.00), superannuation contributions have been made by his employer over at least the last 12 months. The wife has added significantly to her superannuation by way of contribution by herself and/or her employer since separation. To be set off in part is that wife has had exclusive occupation of the home since October 2004. The value of that accommodation has not been quantified.
The wife was concerned about the valuation of the aircraft owned by the husband as it was not assembled at the time of valuation however this must be seen in the light that the valuation was agreed.
Having regard to the whole of the facts and findings with regard to contribution, I make an overall assessment that the entitlement of the wife should be seventy three per cent and the husband twenty seven per cent.
Other factors
I now need to consider the other factors including those under s75(2) of the Family Law Act.
The first issue is the wife’s health. The wife has managed to remain in employment for the whole of the relationship and subsequent to that time is on tenure. Her employment is subject to annual performance reviews. Her health is not good and I accept the wife’s evidence that she sometimes loses focus in class and sometimes misses lectures. However I am satisfied that she is able to continue work for the foreseeable future. The wife has suffered diabetes since age about 12 but has managed that illness. Her evidence is that in recent months the condition has been unstable.
The wife suffers a difficult form of Type 1 diabetes which requires constant monitoring. The evidence of the wife is that she is compliant with medication and needs help as from time to time she can suffer from hypoglycaemia in which she will lose focus or consciousness. The husband’s evidence was that he found her in an unconscious state on at least two occasions during the time they were together. The wife says she keeps regular records of her blood sugar levels. The husband said in evidence that the wife was not compliant with her medication and that she fabricated her blood sugar levels. The wife’s general practitioner, Dr H, and specialist Endocrinologist, Dr C gave evidence, which I accept. I prefer the wife’s evidence, supported at some levels by the medical evidence, with regard to this issue and find she is compliant with her medication and keeps accurate records as to her blood sugar levels.
Dr C said:
“In her daily life, increased stress, particularly those of legal proceedings or other anxiety producing events, will cause more erratic blood sugar levels, including hypoglycaemia. As her current emotional state settles, I would expect her condition to improve to its previous well controlled level. She is on a waiting list for Islet Cell transplantation. This is still in the early days of availability and reliability. She will be on immunosuppressant drugs for the rest of her life. Some of which are expensive as they are not PBS listed.
[The wife] has some diabetic complications. She has mild retinopathy and has mild peripheral neuropathy. Currently they do not impair her ability to work. There is no guarantee this will not worsen in the future.
[The wife] maintains an active lifestyle and is careful with her diet and does all the appropriate things to encourage good health. However she still has a serious chronic disease which is currently incurable and she already suffers from some complications”.
Dr H made observations about the wife’s diabetes and her depression. With regard to the wife’s depression Dr H observed:-
“In 2000 for 18/12 and again in January this years symptoms of depression including low mood, feeling negative, suicidal thoughts and poor self-esteem, disordered thinking. She is taking Zolof and has attended psychological counselling and has a good result to treatment, in the face of ongoing psychological stresses …….. in 2000 her depression resolved with treatment so I expect her to again this time. In the face of ongoing psychological stresses and chronic illness, it may take some time and could recur again in the future. It could become worse to the extent that it affects her ability to function in every day life also. The prognosis is uncertain”.
The wife has managed her illness for 32 years, she has maintained her position as an academic since at least 1998. She manages her illness well and live alone, she drives to and from work. Her illness is not without complications as set out in Dr C’s report. The illness has some impact on her work but not such as prevents her from working full time.
The husband gave evidence of his own health but provided no medical evidence in that regard. He says he suffers from stress and depression. He went on to say that he believes he has some signs of Asperger’s Syndrome. In the absence of medical evidence I have concerns about this self diagnosis by the husband. There is no objective evidence of his diagnosis or treatment for his depression by psychiatrists or psychologists and whilst I have no doubt he is stressed by the events of the marriage breakdown and employment difficulties I am concerned that he exaggerates and/or misdiagnoses his conditions. In any event his counsel does not seek an adjustment in his favour in respect of other factors.
Each party has the responsibility to care for themselves only and neither have repartnered. Neither have children for whom they have any responsibilities.
The proposed orders will not have any impact on the earning capacity of the parties. The standard of living of both parties is reasonable and to that end they each have reasonable income from their respective employments.
The relationship is not a long marriage, it is a short to medium marriage and both parties retained their capacity to earn income throughout the period of the relationship and that capacity remained up to the time of the hearing.
The wife submits there should be a contribution in her favour in the sum of five per cent in respect of the other factors. The husband says there should be no contribution either way.
The wife will, on the contribution basis, have a significantly greater percentage of the pool of assets than the husband and I have had regard to that factor.
In further regard to that factor I am aware that a significant proportion of the wife’s property is contained in superannuation (viz $259,424.00). The wife will not have access to these funds for a period in excess of a decade or more.
Having regard to all of the facts, findings and inferences in these proceedings and all of the other factors, including those under s75(2) of the Family Law Act I determine that there ought not be an adjustment made in favour of the wife in respect of the other factors.
A review of the outcome against just and equitable requirements
In having had regard to the contributions and other factors, the net property should be adjusted so that the wife receives seventy three per cent of the pool and the husband receives twenty seven per cent.
Neither party sought a splitting order and all superannuation funds are accumulation type funds. After considering all of the issues in these proceedings and with the consent of the parties I have determined, with the consent of the parties, to maintain one list of property. This will leave the wife with superannuation funds of about $259,424.00 and the husband with superannuation funds of about $115,994.00. The effect of these orders will mean that the wife will retain the following:-
-         the home  $425,000.00
-         the horses  $1,100.00
-         household furniture  $4,870.00
-         the plant & equipment  $1,545.00
-         the Nissan Navara  $4,350.00
-         the ANZ account  $794.00
-         superannuation  $259,424.00
TOTAL assets  $697,083.00
The wife will be left responsible for the following liabilities:-
-         ANZ home loan  $1,498.00
-         ANZ visa account  $976.00
-         D liability  $760.00
-         F liability  $3,020.00
-         Loan from wife’s mother     $6,930.00
TOTAL liabilities   $13,184.00
NET BALANCE  $683,899.00
The husband will be left with the following:-
-         a horse  $100.00
-         Ultra light aircraft  $17,000.00
-         Harley Davidson motor cycle  $6,500.00
-         motor cycle trailer  $1,250.00
-         Yamaha Grizzly motor cycle  $3,600.00
-         household furniture  $6,110.00
-         plant and equipment  $11,000.00
-         Ford falcon  $600.00
-         post separation savings  $18,000.00
-         savings  $2,792.00
-         superannuation  $115,994.00
Total assets  $182,946.00
The effect of these orders will mean that the wife will pay to the husband, within sixty days, $51,102.15. This payment reduces the amount of property to the wife to $632,796.85 (seventy three per cent of the property pool) and increases the amount to the husband to $234,048.15 (twenty seven cent of the property pool).
In my view that result is just and equitable.

I certify that the preceding 92 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate :

Date : 17 August 2007

[2007] FamCA 829

17 August 2007

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