H and H

[2009] FCWA 133

[2009] FCWA 133

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	H and H [2009] FCWA 133
CORAM	:	MONCRIEFF J
HEARD	:	29 & 30 SEPTEMBER 2009
DELIVERED	:	16 OCTOBER 2009
FILE NO/S	:	PTW 2640 of 2006

BETWEEN : H

Applicant Husband

AND

H

Respondent Wife

Catchwords:

FAMILY LAW - property settlement - add-backs - disallowed debt to parents - contributions

- s 75(2) factors

Legislation:

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

Category: Not Reportable

Representation:

Counsel:

Applicant Husband	:	Dr A Dickey QC
Respondent Wife	:	Mr R Klimek

Solicitors:

Applicant Husband	:	Doray Solicitors
Respondent Wife	:	Klimek & Co

[2009] FCWA 133

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

Biltoft and Biltoft (1995) FLC 92-614
Kowaliw and Kowaliw (1981) FLC 91-092
Omacini and Omacini (2005) FLC 93-218

[2009] FCWA 133

1 The parties in this case are unable to agree how to divide their property upon the breakdown of their marriage.

2 They have however come to the Court to ask that I make a determination that it

would be a just and equitable division of property between them were the wife to
receive 60% of the available pool and the husband 40%.

3 The issues for the Court to decide are, firstly, what is the pool of assets to be

divided, as the parties are unable to agree what the pool is, and secondly, whether a division in the circumstances of the pool of 60/40 in favour of the wife is a just and equitable one.

Background

4 The applicant husband, Mr H was born [overseas] [in] January 1954, and the

respondent wife, Mrs H, was born [overseas] [in] August 1962. The husband and the
wife are now respectively aged 55 and 47 years.

5 The husband migrated to Australia in 1986. The parties married overseas

[in] April 1992, and the wife arrived in Australia on 1 July 1992. The parties have
since lived in Australia as their principal place of residence.

6 The parties have two children, a son, [P] born [in] March 1997 (now aged 12), and a daughter, [A] born [in] March 2001 (now aged eight).

7 The parties separated towards the end of April 2006. There is some dispute

about the date of separation, but the parties do agree that they finally physically separated on 11 May 2006. They are now divorced with an order having been made on 9 April 2009.

8 The Court has been asked to make orders only with respect to financial matters

between the parties. Although the parties remain in dispute about final arrangements for the children, the parties do not wish to have that issue presently determined by way of a final hearing.

The areas in dispute

9 There are two principal areas of dispute between the parties relating to the assessment of the pool of assets for division between them:

• add-backs; and

• the existence of a liability to the husband’s parents.

10 For the purpose of the trial the husband represents the parties’ assets, liabilities and financial resources as follows:

[2009] FCWA 133

ASSETS – JOINT	$400,00
[Lot A, R Street]
Joint total:	$400,000
Net proceeds of sale of [L Street], received by the husband

42,318

[Nissan] motor vehicle	Nil
Proceeds of sale of [1998 Holden]	9,400
Home contents	1,785
Add-back funds retained by each party from the joint Commonwealth Bank
Veridian Line of Credit Account at separation	10,000
ANZ Access Account	1,274
Funds in lawyer’s Trust Account	34,562
Total:	$99,339
ASSETS – WIFE
Net proceeds of sale of [L Street]	48,261
Land overseas	18,132
Home contents	3,595
Funds retained from the joint Commonwealth Bank Veridian Line of
Credit	10,000
Commonwealth Bank Account	3,228
Commonwealth Bank Cash Investment Account	8,500
Wife’s further Commonwealth Bank Account	5,168
Commonwealth Bank Account in the name of the wife and the parties’ son
[P]	95
Commonwealth Bank Account in the name of the wife and the parties’
daughter [A]	2,759
Wife’s jewellery	2,300
Total:	$102,038
Liabilities Debt to the husband’s parents re the land at [Lot A,R Street]

225,000

Debt to husband’s parents – subdivision costs	11,308
Debt to husband’s father for legal fees	54,363
Husband’s CBA Master Card	450
Liabilities discharged by the husband re [L Street]	500
Husband’s Capital Gains Tax on sale of [L Street]	NK
Total:	$291,621

11 The figures for superannuation as updated during the trial were agreed at:

• Husband $47,964 and

• Wife $27,181

12 The wife’s position at trial was:

[2009] FCWA 133

ASSETS – JOINT

[Lot A, R Street] – an agreed value	400,000
Husband – distribution for the sale of [L Street]	41,803
Withdrawal from mortgage on 26 April 2006	10,000
[Nissan ]	3,000
Sale proceeds of 1999 [Holden]	9.400
GESB Superannuation Fund	24,478
AXA Retirement Bond	16,910
Furniture and chattels	1,785
Withdrawal from the mortgage to CBA Credit Card on:
8 May 2006	1,960
6 June 2006	1,050
10 July 2006	38
8 August 2006	5,188
9 September 2006 (changed to $509 during the trial)	1,455
9 October 2006	1,455
7 November 2006	217
6 December 2006	1,029
3 January 2007	739
6 February 2007	530
7 March 2007	142
The difference between the husband’s income and expenses since date of
separation	125,837
ASSETS – WIFE
Distribution from the sale of [L Street]	48,260
Land overseas	10,957
Withdrawal from mortgage	10,000
GESB Superannuation	27,181
Furniture and chattels	3,595
Jewellery	2,300

13 The wife says there are no liabilities that should be brought into account.

14 I turn then to consider the several areas of dispute.

Add-backs

15 Dr A C Dickey, one of Her Majesty’s counsel appearing for the husband,

identified as the current and relevant statement of the law relating to add-backs that passage in Omacini and Omacini (2005) FLC 93-218 at pp 79,617 and 79,618, where the Court identified the three categories where it is open to a Court to add back into the pool of assets for the purposes of the assessment of the matrimonial pool:

(a) where the parties have expended money on legal fees;

[2009] FCWA 133

(b)	where there has been a premature distribution of matrimonial assets; and
(c)	in the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092.

The 1989 [Nissan] motor vehicle

16 The wife asserts that this vehicle has a value of $3,000. The husband says that it

has no value.

17 It appears to be common ground that the wife retained the vehicle following the

parties’ separation and then in July 2006, returned the vehicle to the husband at the
[local] Police Station.

18 The husband’s evidence is that as a result of a conversation he had with a

mechanic, who did not give evidence, he formed the view that the vehicle was of no
value and accordingly gave it away.

19 At the relevant time the vehicle was some 17 years old and I can take notice that

the vehicle was not particularly expensive when new. No evidence is proffered by
either party in any admissible form as to the current value of the vehicle.

20 The husband was not challenged in his assertion that he gave the vehicle away.

The wife’s assertion as to value is based upon an estimate of the value placed on the vehicle by the husband in his statement of financial circumstances in June 2006, prior to the vehicle’s return.

21 As I will consider below, the husband’s statements of financial circumstances

are notoriously unreliable, however, the husband’s assertion is not a statement of value
upon which I could confidently rely.

22 In the circumstances, I am not satisfied that this asserted sum of $3,000 should be added back into the pool of assets.

Proceeds of sale of the 1998 [Holden] motor vehicle - $9,400

23 The husband says that this sum should not be added back into the pool of assets

despite the fact that the husband accepts that he sold the vehicle after separation. The vehicle was in existence at separation and the husband received the sum of $9,400 for its sale. The husband has had the benefit of the proceeds of the sale of the [Holden] to the exclusion of the wife and in my finding, his sale and retention of the proceeds of sale represents a premature distribution of property to the benefit of the husband and should be added back into the pool of assets.

Withdrawals from Mortgage Loan Account to CBA Credit Card between 8 May 2006 and 7 March 2007

24 The husband’s position is that the withdrawals over this period when corrected as to the September withdrawal, should not be added back.

[2009] FCWA 133

25 Dr Dickey for the husband submits that I should take a “broad brush” approach

to the question of add-backs. He further submits that the wife received a greater amount from the distribution of the proceeds of sale of the [L Street] property which offset or otherwise equalise the financial position of the parties, taking into account the withdrawals made by the husband.

26 Allowing for the correction to the September figure, reduced to $509, the total

amount drawn from the mortgage to the husband’s credit card was $12,857. The differential paid to the wife upon the distribution of L Street to “equalise” their positions was $5,943 (ie: $48,261-$42,318), leaving a difference of $6,914 (ie: $12,857-$5,943) that arguably could be added back.

27 There are assertions made by the wife about a want of any adequate disclosure at

this time in the parties’ separation and I am not informed as to how the differential was
calculated.

28 The husband continued to draw against the parties’ line of credit, distributing a benefit to himself and incurring a liability for the parties.

29 Against this, the husband had indicated to the bank that he was no longer

prepared to make any payments to the mortgage or in reduction of the mortgage, despite continuing to reside in the former matrimonial home following the parties’ separation. His actions resulted in a mortgage into which no payment was being made by the party deriving the benefit of the occupation of the property, a distribution to the husband by drawings against the mortgage for his benefit and an increase overall in the parties’ liabilities.

30 In my view, these transactions fall squarely within the range of transactions that were contemplated in Omacini as being appropriate to add back to the pool of assets.

31 I therefore intend to add back into the pool of assets the sum of $6,914, being

funds that the husband has received for his benefit over and above those provided to
the wife from the distribution of the sale proceeds from the L Street property.

The capitalisation of the alleged difference between the husband’s income and expenses since the date of separation

32 In the assets and liabilities schedule filed with the wife’s Papers for the Judge on 25 September 2009, the wife’s representative had included this as a line item:

“Difference between husband’s income and expenses since date of separation $125,837 - source document husband’s Form 13 Financial Statement filed 10 September 2009”.

33 At the outset I will observe that no authority for this proposition was produced.

Irrespective of that, the calculation of the sum is clumsy and ignores the varying financial circumstances of the husband from the date of separation.

34 Indeed, Mr Klimek for the wife cross-examined the husband about the financial statements he had filed on 9 June 2006, 18 August 2006 and 30 December 2008.

[2009] FCWA 133

35 In each case the income figures varied as did the assertions by the husband as to

his disposable income, which were not accepted as representations of the truth in any
event by the wife.

36 The calculation ignores the fact that the husband’s income has increased since

separation, ignores his personal expenditure or any expenditure he makes for other persons as detailed in his statement of financial circumstances, and ignores any legitimate use for which the funds may have been put.

37 There is no precise calculation available to me upon which I could safely rely to

conclude that either, in the exercise of my discretion, this sum should be added back (or any other sum) or conclude that the husband has squirreled monies away in another asset.

38 There is no doubt that post-separation the husband has had available to him

greater financial resources than the wife. This is an issue that is, no doubt, reflected in the percentage division of assets that the parties agree, but is not a sum that can be either quantified on the state of the evidence before me nor a sum that I can, in the exercise of my discretion, find is properly added back.

The wife’s bank accounts

39 In their respective positions as represented for trial the husband had enumerated

a significant number of bank accounts for the wife, whilst the wife had not included any. In her evidence it became apparent that a large portion of the monies contained in her respective bank accounts represented the balance of funds that she had received that have otherwise been accounted for from the earlier distributions of funds from the sale of the L Street property and also the draw-downs from the mortgage.

40 The only account that was not so affected was the wife’s Streamline account

with a balance of $3,228 and it is that sum that should be included in the parties’ assets
and liabilities statement.

41 There is also a sum of $2,759 in an account in the name of the wife and the

parties’ daughter [A], over which the wife has the power of disposition, and an account in the parties’ son’s name with the husband having the power to operate, where there is a balance of $95. I am satisfied that the difference between the two accounts should be brought into account, namely the sum of $2,664.

Capital Gains Tax

42 The sale of the property at L Street attracted a capital gains tax liability. At the

time of trial the wife had paid the assessed capital gains tax out of the distribution that she had received from L Street. I have taken the distribution in at the gross amount, not the amount less capital gains tax. No evidence was given to me as to the actual amount of capital gains tax paid by the wife.

43 The husband had not lodged a return disclosing a taxable capital gain. He had

believed that, as the sale was as a consequence of the break down of the parties’

[2009] FCWA 133

marriage, the transaction would be exempt from capital gains tax, relying on information posted in general terms on the Australian Taxation Office website. His liability for capital gains tax is yet to be assessed.

44 In the circumstances I propose simply to take into account the gross amount

received by each of the parties from the sale of the L Street property and otherwise ignore the capital gains tax liability as I am not in a position to include the specific figures.

The existence of the debt to the husband’s parents

45 In his assets and liability schedule the husband’s position is that he owes his

parents the sum of $225,000. That figure is calculated by reference to the value of the
land without the improvements at R Street.

46 The husband, in his trial affidavit, represents the background to this claim as

follows:

“40.	In 1989 my parents migrated to Australia with my younger brother [J], to live in Perth.
41.	When my parents and brother moved to Perth I was an Australian permanent resident, residing in Perth in a rental property. I was already separated from my first wife and I was seeing my daughter [U] every weekend. She was then about four years old.
42.	After my parents and brother moved to Perth my father wanted to purchase a residential property for my parents, my brother and me to stay at.
43.	We found an established home at [R Street] which my parents wanted to purchase for $90,000.
44.	My father contacted the National Australia Bank to obtain a home loan.
45.	At that time he was employed as a [tradesman].
46.	When he disclosed his income details to the bank, the bank advised him that his income alone was not sufficient to obtain a loan of $90,000.
47.	As I was working full-time as a [lab assistant] I offered my income to be taken into account. The bank agreed to this provided the loan was taken out in both my father’s name and my name.
48.	My father and I agreed to this and therefore, [R Street] was purchased in my father’s name and my name.

[2009] FCWA 133

49. I did not make any financial contributions to the acquisition of the property.

50. I vaguely recall my father paying a deposit of about $10,000 for [R Street].

47 The property at R Street was then secured in the names of the husband and his

father. No satisfactory explanation was given or offered as to why the property was not registered to include the names of both the husband’s parents, who were in a subsisting marriage at the time, nor was any evidence proffered as to why it was that the bank did not seek a guarantee of the debt from the husband if his representations were correct.

48 The husband, in his evidence, was adamant that the bank required that the

property be in their joint names and that the mortgage then be in their joint names. Certainly, without a proprietary interest in the land the husband could not have effected a mortgage over the land as security for the bank, however, he would not have been precluded from entering into a guarantee.

49 After the parties married they resided with the husband’s parents and his brother

at R Street. The husband asserts that he “continued to pay my father a $100 a week”. Additionally, he sometimes paid for groceries for the family. The husband makes a further clear representation that:

“Whilst Mrs H and I were staying with my parents we did not pay the electricity bills, telephone bills, gas bills, water consumption bills, land rates or water rates. My parents met all these expenses.”

50 In about 1995 it appears there was some falling out between the parties and the

husband’s parents which resulted in them moving into a rental unit [in another suburb]. At that time the husband ceased making any financial contribution to the household of his parents and brother in R Street.

51 In 1997 it was agreed that the parties could build a house on the land at the back

of R Street. To that end, the husband says the parties borrowed $80,000 from the National Australia Bank to complete the building of their house, although it does not appear that any separate mortgage was registered to secure that borrowing.

52 The husband says that in about 2000 his father was made redundant from his

then employer [a government agency], received a redundancy payment and used some of the money to pay out the mortgage on the R Street house. Also at that time his father indicated that he wanted to subdivide the land so that his house would be on a separate title and the parties’ house on another.

53 There was further discussion about the costs of the subdivision and who would

pay. The husband asserts that his father paid the costs of the subdivision of about $15,000 and that his father told him “that one day I would have to pay for half the costs of the subdivision plus the value of the rear block”.

[2009] FCWA 133

54 It is the husband’s case that in November 2000, when the documentation was

being completed for the subdivision, the husband was presented (without prior notice)
with a document to sign in the following terms:

“[R	Street]
14 November 2000 –

I Mr H Senior], father of [Mr H] wish to record That I have allowed [Mr H] to build a house on a block of land (397 sq. M) at the back of our property, situated at [lot No. 1 location XXX, postal address R Street, Suburb] Western Australia. I also wish to record that should [Mr H] decides (sic) to dispose of this property, for whatever circumstances, he

should pay

[Mr and Mrs H Senior] for the block of land where currently constructed

dwelling is [R Street], and all other expenses incurred.

Cost of land	At the time of selling the land and house.
Public open space contribution	$8,487.50
Partition Fence	500.00
Gas Line	360.00

This agreement is made in the presence of [Mr. D] of [the suburb].”

and the same is signed by Mr H Senior, the husband’s father, Mrs H Senior, the
husband’s mother, and the husband.

55 The document was stamped on 16 October 2008, however the wife does not

suggest that it is not a genuine document in the sense that it was not signed on the date
represented, namely 14 November 2000.

56 The execution of the document coincided with the completion of the

subdivision. Upon completion of the subdivision a title was issued in the separate name of the husband and another title in the separate name of his father. Coincidentally with the issuing of the title a transfer from the husband to he and the wife as joint tenants was registered as one of the sequential documents.

57 The wife’s position is that she had no knowledge of the existence of the

14 November 2000 document until the same was disclosed subsequent to the parties’
separation. I make these initial observations about the document:

•  At the time the document was signed the husband’s mother had no proprietary interest in the land.

•  At the time the document was signed it was the intention of the husband that he and the wife be the joint registered proprietors of [Lot A,R Street].

•  The wife is a person potentially affected by the document, but was not invited to sign it nor was she advised of its existence, yet at or about the same time the wife executed a transfer document as transferee jointly with the husband from the husband.

[2009] FCWA 133

• The document itself speaks only of uncertain and “moral” obligations. For example – “He should pay Mr and Mrs [not a proprietor of the land].

58 Mr H Snr filed an affidavit deposing to the circumstances that led to the subdivision. In his trial affidavit he recounts the events as follows:

“4.

There was an old house at R Street at the time we bought this property. The house was on the front part of the property which eventually became the separate block. My wife and I have lived in this house ever since we bought it.

5.

This duplex block cost $90,000. In order to purchase this property I needed a housing loan. However, I was unable to obtain a loan by myself as my income was not sufficient. It was only about $615 per week. As [the son] was then single, working and living with us, the National Australia Savings was prepared to take his income into account, provided the loan was taken out in both our names. [The son] and I agreed to this. It is for this reason the duplex block was also registered in the names of [the son] and me and not my wife and me, however my wife and I [my emphasis] always regarded this property as belonging to us alone, and [the son] has always acknowledged to us that this was so.”

59 The fundamental premise of the joint ownership of the original property at R

Street was that the bank would not advance a loan to the husband’s father to enable him to purchase the property.

60 Mr H Snr was cross-examined on his affidavit. I found him to be an unconvincing witness and formed the view that his evidence was rehearsed.

61 There were substantial differences between the position represented by Mr H Snr and those contained in his affidavit. Although there were two instalments of $483 going into the mortgage account monthly in 1992, he did not accept that one of those payments was made by the husband. He claimed that he did not keep documents and that he had destroyed his documents a few years back as they were “junk”. One or two of those documents did survive, in particular, a bank statement for the mortgage account in 1994 showing two payments of $483 per month, being paid into the mortgage account.

62 The most telling document that survived however was correspondence from the

National Australia Bank in January 1989, addressed to the husband’s father alone, in the following terms:

“17 January 1989

Dear [Mr H ]

We are pleased to advise that your application for finance to assist with the purchase of [R Street] has been approved.

Yours faithfully

[2009] FCWA 133

(signed [E R F], Manager)”

63 On 19 January 1989, the National Australia Bank again wrote to the husband’s

father.

“Dear [Mr H]

Re: Purchase [R Street]

We are pleased to advise that your application for a housing loan for $80,000 has been approved as follows:

The letter then details the interest rate and the term and seeks as security
“First Registered Mortgage over [R Street]”.

64 At no point in the correspondence from the National Australia Bank to the

husband’s father approving his loan application for $80,000 does the National Australia Bank require the husband to be either a joint proprietor, a joint borrower, or joint mortgagee with the husband.

65 I find that the joint representation made by the husband and his father as to the

reasons why the property was purchased in the husband’s and his father’s joint names
to be false.

66 Further, when the husband’s father was presented with the letters from the

National Australia Bank in his cross-examination he dissembled very quickly, claiming then that he “could not remember” and “at first they said they can’t”.

67 Further Mr H Snr was cross-examined about representations he had made to

[the Magistrate] in contested VRO proceedings in the Magistrates Court. In his
examination in chief he said this in answer to questions by the husband’s counsel:

“Question: Just in regards to … to your house where … is your house?

Answer: Now actually my land … I gave a part of my land to her to build their house, that’s at the back and my house is in front.

Question: OK.

Answer: I didn’t take a red cent for that land I gave it to her.

Question: OK.

Answer: And her name was put in the Will my name was removed.”

And further:

“Question: Where were they living before that?

Answer: They were …they were living … as soon as they got married then came to Australia they living in my house. I gave them two rooms and they were … we have four rooms and we gave them two rooms and

[2009] FCWA 133

they were living there. Then later on they … I gave them that land and
they build the house and move in.”

68 The wife also sought to rely on notes she had made in her diary. On Friday, 28 September 1992, she records:

“Went to National Australia Bank and paid $483 for housing loan.”

69 On Tuesday, 8 February 1994 she records:

“Went TAFE for enrolments spent a lot of money today, skirt $20,
mortgage $200, college fees $180.”

70 What is significant about these diary entries and, in my view, adds weight to

their accuracy is that firstly, they each refer to a payment of a housing loan or mortgage. The amount paid in September 1992 was the exact amount of one of the monthly payments required of the mortgage and whilst the payment in 1994 was not exactly referable to the payment of the specific mortgage amount, the reference is to a mortgage payment rather than rent or any other payment.

71 Secondly and significantly, in my finding, at that time the wife did not know of

the existence of the document of 14 November 2000, so it could not be suggested that the entries in her diary were manufactured for any purpose, and nor was it suggested to her that this was the case.

72 The wife also gave evidence about the parties’ sharing in other costs around the

household.

73 The wife impressed me as a witness of truth. Wherever her evidence is in conflict with that of the husband or his father, I prefer her evidence.

74 In conclusion I find that at the time the husband and his father acquired the

initial land at R Street, it was intended they would both have a joint legal and beneficial interest in that land. Further, that at the time the land was subdivided there remained a debt due with respect to the totality of the land and that ultimately the husband’s father contributed more to the acquisition of all of R Street than did the husband, through his payment of the mortgage balance as it stood when discharged in about 2000, when the husband’s father received a redundancy payment from [his employer].

75 The question then remains what was the purpose of the document executed between the parties on 14 November 2000.

76 The husband’s father was clear that he would never sue on the document and

that there was no present obligation to repay the money, nor had repayment of the
money ever been demanded.

77 The husband’s father was also clear that it suited he and his wife to have the husband live as he does immediately behind their house.

[2009] FCWA 133

78 At its highest, in my finding, the document places upon the husband some vague, but in all probability, unenforceable moral obligation to his parents.

79 I do not accept that the husband believes he has a current obligation to discharge

that debt and, indeed, I formed a view of the husband that he would represent whatever he considered suited his purpose at any given point in time in the proceedings.

80 My particularly negative finding as to his credit is based on the various

representations made in his statements of financial circumstances where he, despite his employment as a Budget and Finance Officer – who, in his evidence, confirmed that he worked with figures and accounts all day – omitted bank accounts under his control, and a substantial portion of his superannuation, but was able to remember to include claimed debts and the [Nissan] whilst it was in the wife’s possession. Interestingly, on two occasions, he represented his interest in the land at Lot A, R Street being as a one-third interest with his parents as the other proprietors.

81 Further, his representations as to why the funds he received from L Street were

paid into his father’s bank account rather than his own were unconvincing. He claimed this was because his father’s account was a cheque account and yet he was operating an ANZ Access Account at the time. I pointed out to both counsel for the parties that I was well familiar with the operating terms of an ANZ Access account and in particular, that for no additional cost, the husband could have had a cheque book to operate that account.

82 The husband was steadfast in his refusal not to contribute to the mortgage post

separation and was highly affronted when the Child Support Agency demanded funds from him and were able to access his bank account to secure payment of arrears. I am left with no doubt whatsoever that the husband placed the monies into his father’s account to avoid the grasp of the Child Support Agency. Similarly, I note that the only representation as to the value of the [Nissan] motor vehicle was made in the husband’s first statement of financial circumstances when the vehicle was in the wife’s possession. However, for the reasons I have indicated earlier, I do not propose to take that representation into account on the husband’s side of the ledger now that the vehicle has been returned to him because I strongly suspect that the valuation was highly inflated for the purposes of trying to demonstrate that the wife had received significantly more benefit than she had from the husband.

83 I have regard to the statements of principle that flow from the decision of the

Full Court in Biltoft and Biltoft (1995) FLC 92-614, and despite the fact that quite clearly there was an intentional purpose behind the document of 14 November 2000 (albeit ill defined), I have determined not to take into account any potential liability arising from it.

Conclusion as to pool

84 In closing their respective cases the parties were able to narrow the areas of

dispute about the pool of assets, and in particular agreement was reached as to how

[2009] FCWA 133

paid legal fees should be dealt with and both parties, as was I, were very keen to
ensure that there was no double counting of any prior distribution between the parties.

85 I find therefore, for the reasons I have given above, that the pool of assets available for distribution between the parties is as follows:

Pool of Assets Husband Wife

[Lot A, R Street](Agreed)	400,000
Husband’s Assets Net proceeds of sale of [L Street] added back (Agreed)
42,318
Proceeds of sale of 1999 [ Holden] added back	9,400
Home contents (Agreed)	1,785
Funds retained from the Commonwealth Bank Veridian Line
of Credit added back (Agreed)	10,000
ANZ Access account (Agreed)	1,274
Add-back unaccounted for withdrawals from the mortgage
account to the husband’s credit card	6,914
Husband total	$471,691
Wife’s Assets Proceeds of sale from [L Street] (Agreed)

48,261

Land overseas (Agreed)	18,132
Home contents (Agreed)	3,595
Funds retained from the Commonwealth Bank Veridian Line
of Credit added back (Agreed)	10,000
Streamline bank account Account with the child [A] (less balance in son’s account) Jewellery (Agreed) Wife total Liabilities – Nil	3,228
2,664
2,300

$88,180

Superannuation

Husband - AXA Retirement Bond 16,909

- Westate Super 31,055

Wife	27,181
Total pool (including superannuation) $635,016

166 I would add that in finding that the liabilities should be nil, I have disregarded

the claimed debt to the husband’s parents in total, including the subdivision costs and the husband’s current credit card debt of $450, given that the husband had extinguished any debt by use of his earlier drawings from the mortgage.

[2009] FCWA 133

167 Although the husband had sought a superannuation splitting order in his Minute

of Orders sought in November 2008, it was not pursued at trial. Given the balances of the parties’ superannuation funds it is appropriate that they be added into the pool of assets as property as they are not substantial and it does not, in my finding, create any significant imbalance between the parties, nor was it suggested to me by counsel that I should do otherwise.

168 A 60/40 division of the asset pool as I have found it to be requires the husband to pay to the wife the sum of $265,648, ie:

• 60% of $635,016 = $381,009

• less wife’s retained assets and superannuation ($88,180 + $27,181) = $265,648

Is this outcome just and equitable

169 Although each of the parties urge upon me to find that a distribution between the

parties of 60/40 is a just and equitable outcome in the circumstances of this case, I must make my own determination for the purposes of s 79(2) of the Family Law Act 1975.

170 The parties cohabited for a period of almost 14 years. At the commencement of

the marriage the husband had an interest in the property at R Street, as I have found. I accept that when the mortgage was discharged over the property and the land was subdivided the totality of the outstanding original mortgage debt was discharged by the husband’s father and although not specifically quantifiable, this represented a contribution from the husband’s family.

171 The wife brought into the relationship land overseas to which the husband did not make any contribution.

172 Each of the parties therefore brought into the marriage contribution from their

respective families. During the subsistence of the marriage the parties had two children, [P] now 12, and [A] now 8, both of whom have been residing primarily with the wife since separation.

173 The husband has been employed full-time while the wife’s employment has been

more limited as a consequence of her higher level of involvement on a day to day basis
with the care of the children.

174 Subsequent to the parties’ separation, the husband has had the ongoing use of the

former matrimonial home and has refused to pay the mortgage encumbering that property. He has also had the benefit of various premature distributions of property to which I have referred earlier in my reasons. It could well be said that the husband, to some degree, after separation has made a negative contribution to the asset pool through increasing of the parties’ ultimate liability on the mortgage that was subsequently discharged upon the sale of L Street. However, taking a global view of the parties’ circumstances at the commencement and during the marriage, it is open to draw the conclusion that contributions should be treated as equal or slightly favouring the husband at separation, given the benefit the parties received from his family as a consequence of the subdivision of the property at R Street.

[2009] FCWA 133

175 Although the husband has made some negative contribution post separation he

has contributed solely to the increase in his superannuation through contributions. His superannuation assets are greater than the wife’s and therefore the deferred component of his property is greater than the wife’s.

176 Overall I find that the parties’ contributions are equal.

177 Having regard to the factors prescribed in s 75(2) of the Family Law Act,

particularly:

(i) the fact that the wife has the greater proportion of care of the children (although I note that child related proceedings are yet to be included);

(ii) the husband has demonstrated an unwillingness to contribute financially to the support of the children in the past; and

(iii) that for at least some time to come the husband’s income is likely to be better than the wife’s;

I consider that an adjustment of 10% to allow for the factors so prescribed is well within the range of acceptable outcomes and in all the circumstances I am satisfied that the division as proposed by the parties in percentage terms is just and equitable.

Conclusion

178 In fixing the amount payable in terms of the final orders in this matter, I have not

taken into account any sums that have been paid by either of the parties to obtain valuations for the purpose of trial where the payment was made in advance by one party subject to the other party contributing one half, as I do not have exact figures available to me. I have allowed for them to be offset as against the final payment that is due to the wife.

179 I have drawn the orders on the basis that the husband will retain the property at

[Lot A, R Street]. Although he made representations as to the limited funds that he could borrow during the course of the trial, there was no evidence in any proper or admissible form that supported the husband’s position and in any event, I have found his representations about financial matters to have been notoriously unreliable.

180 I am not satisfied that the orders that I have made will necessarily require the

husband to dispose of the property at Lot A, R Street and I have drafted the proposed
orders accordingly.

Proposed orders

1. Within 60 days of the date of these orders the husband do pay to the wife the sum of $265,648 less any amount due and payable by the wife to the husband pursuant to orders made in these proceedings as to the sharing of the costs of valuations.

[2009] FCWA 133

2,	Contemporaneously with the payment to the wife by the husband in paragraph 1 the wife provide to the husband a duly executed Memorandum of Transfer in a registrable form of all her right title estate and interest in [Lot A, R Street, Suburb], Certificate of Title reference Volume XXXX Folio XXX.
3.	The parties otherwise retain to the exclusion of the other all property, both real and personal, under their respective control.
4.	The applications otherwise be dismissed.

I certify that the preceding [180] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate