Heath and Heath

[2017] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATH & HEATH [2017] FCCA 2007

Catchwords:
FAMILY LAW – Property proceedings – final orders – long marriage – alleged debts not found.

Legislation:

Family Law Act 1975

Cases cited:

Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108

Jong & Yeng [2014] FamCAFA 156

Applicant: MS HEATH

Respondent: MR HEATH

File Number: BRC 7757 of 2015

Judgment of: Judge Middleton

Hearing dates: 13 October 2016 and 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Newcastle

Delivered on: 23 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Shoebridge

Solicitors for the Applicant: Pullos Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: N/A

ORDERS

1. That within 30 days from the date of these orders the Applicant and Respondent shall:

   (a)do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant, all of the Respondent’s right, title and interest in the property situated at Property A and more particularly described as Property A (“the Property A property”); and

   (b)sign all documents and do all things required by the mortgagee to refinance the mortgage debt secured by the Property A property pursuant to Registered Mortgage number (omitted) into the Respondent’s sole name.

2. Contemporaneous with and otherwise within 30 days the Respondent shall pay to the Applicant the sum of $88,398.95.

3. In the event that the Respondent does not comply with order 2, the property at Property B2 more particularly described as Property B2 (“the Property B2 property”) be sold and for the purpose of the sale the following shall apply:

   (a)the Applicant wife be appointed as the trustee for sale of the Property B2 property and that the property vest in the Applicant wife for the purpose of the sale;

   (b)that the trustee shall proceed to sell the property by private treaty or by public auction and she may be advised, subject to the following:

   (i)the trustee may incur advertising expenses in respect of the proposed sale to be deducted from the sale proceeds;

   (ii)the trustee may retain an agent on the basis that the agent is given the sole agency for a limited period or may list the property for sale with a number of agents in her discretion;

   (iii)the trustee may enter into an appropriate agency agreement with an agent provided that the commission agreed upon does not substantially exceed the recommended rate by the Real Estate Institute of Queensland;

   (iv)the trustee may retain a solicitor of her choice to act for the vendor on the sale;

   (v)the trustee is authorised to enter into a contract for sale in such terms as advised by the solicitors acting on the sale.

   (c)The Respondent husband is ordered to vacate the property, leaving the property in a clean and sellable condition and thereafter remain away from the said property within 21 days from the date that this order is invoked;

   (d)Upon completion of the sale the proceeds of sale shall be disbursed as follows:

   (i)payment of all agents commission advertising;

   (ii)payment of all legal costs and outgoings in relation to the sale;

   (iii)the balance be distributed in a manner to effect an overall 50/50 property division between the parties, taking into account the property retained by the Applicant and Respondent otherwise pursuant to these Orders and that the wife's adjustment be paid to her by way of bank cheque payable to the wife's solicitors, Pullos Lawyers Trust Account.

4. That contemporaneous with the payment pursuant to order 2 or in the alternative upon default pursuant to order 3 the wife do all acts and things necessary to remove Caveat no. (omitted) over Property B2 (“the Property B2 property”).

5. That the Applicant retain the following assets free from any claim from the Respondent:

   (a)any bank accounts held in her name alone;

   (b)all jewellery, furniture and personal effects in her possession.

6. That the Respondent retain the following assets free from any claim from the Applicant:

   (a)All bank accounts held in his name alone;

   (b)All jewellery, furniture and personal effects in his possession.

7. That the Applicant retain the liability for and indemnify the Respondent in relation to the following:

   (a)any credit cards held in her name alone;

   (b)any other liabilities held in her name alone;

8. That the Respondent retain the liability for and indemnify the Applicant in relation to the following:

   (a)all credit cards held in his name alone;

   (b)any other liabilities held in his name alone.

9. That the husband and wife do all acts and things and sign all documents as may be necessary to give effect to the terms of these orders and that in the event the husband or the wife refuses or neglects to sign such documents and do all such acts as may be necessary to give effect to these orders then:

   (a)the Registrar or Deputy Registrar of the Brisbane Registry the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 (as amended) to execute all deeds and any documents in the name of the wife and/or the husband and do all acts and things necessary to implement these orders; and

   (b)the execution of such documentation by the said Registrar or the Deputy Registrar will have the same force and validity as if this document had been executed by the defaulting party or parties.

10. No order as to costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Middleton delivered this day will for all publication and reporting purposes be referred to as Heath & Heath.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7757 of 2015

MS HEATH

Applicant

And

MR HEATH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a dispute about the alteration of interests in property.

2. The Applicant wife was 78 at the time of trial and the Respondent husband was 71.

3. The parties began cohabitation in 1970, married on (omitted) 1974 and separated on 14 February 2015. Accordingly there was a relevant relationship for approximately 45 years.

4. There are two pieces of real estate namely Property A (owned as joint tenants) and Property B2 (in the husband's sole name).

5. The Applicant wife lives in the Property A property and the Respondent husband lives in a property at (omitted) on the Gold Coast and rents out the property at Property B2.

6. The parties commenced living together in Hobart, Tasmania.

7. In 1974 the parties purchased a (omitted property) in Hobart and in 1977 the parties purchased a property in (omitted) Hobart.

8. Between 1977 and 1980 the parties purchased a block of vacant land in (omitted), Hobart where they built a house and later resided in upon construction being completed.

9. At some stage between 1977 and 1979 the party (omitted property) caught fire and was destroyed. The husband suffered a nervous breakdown and travelled to (country omitted) for medical treatment.

10. The husband returns to Australia in 1980 and in 1981 the parties sell their (omitted) property for $50,000 and relocate to the Gold Coast.

11. In 1982 the parties purchase a property in Property C for $80,000.

12. In 2003 the parties purchased a property at Property A for $270,000. This property is where the wife currently resides.

13. In March 2009 the husband purchased a property at Property B with a Mr D for the sum of $420,000.

14. In July 2009 the parties sell the Property C property for the sum of $420,000.

15. Between 2011 and May 2013 the Property B property is subdivided into 2 lots known as Property B1 and Property B2 and a pair of duplex homes are constructed. The husband and Mr D own both properties jointly as tenants in common in equal shares.

16. In May 2013 the parties move into Property B2.

17. In November 2014 the parties sign a (omitted bank) home loan application to raise a loan of $80,000 secured by the Property A property.

18. The parties separate on the 14 February 2015 as a result of a domestic violence incident by the husband against the wife. 

19. In May 2015 the wife moves into the property at Property A.

20. In July 2015 the husband withdraws the sum of $186,353.79 from his personal (omitted bank) account.

21. The wife files her initiating application on 14 August 2015.

22. On 11 September there is a further act of violence by the husband wherein the husband is alleged to have threatened to come to the wife's sister's home, burn it down and smash everything. As a result Queensland police file an Application for Protection Order against the husband on behalf of the wife in relation to the threats made to the wife's sister.

23. There is an apprehended violence order in place dated 28 January 2016 for a period of 2 years expiring on 27 January 2018.

24. On 9 October 2015 the husband files his Response to the Initiating Application.

25. On 27 November 2015 the wife files an Application in a Case seeking that Mr D be joined to the proceedings and that a 50% share of the sale proceeds of the property situated at Property B1 be held in her solicitor's trust account pending resolution of this matter.

26. On 5 February 2016 orders are made by consent which provide for Mr D to transfer his 50% share in Property B1 to the Husband, retain the sale proceeds from the sale of Property B2 and thereafter be removed as a party upon the transfer being affected.

27. On 9 April 2016 the parties divorce becomes final.

The issues

1. The issues for determination are:

   a)whether  the wife has jewellery valued at $35,000;

   b)whether the wife has an account with a balance of $3,210;

   c)whether the husband removed the sum of $18,000 cash from the home at the time of separation;

   d)whether the husband removed $186,353.79 from his account shortly after separation.

   e)whether the husband owes his brother the sum of $186,353.79;

   f)whether the husband owes his brother a further $46,085.76;

   g)whether there is a Centrelink debt in the name of the husband in the sum of $2,200;

   h)whether there is a credit card in the name of the husband in the sum of $1,750;

   i)whether the husband owes Mr D any money at all;

   j)whether the husband is responsible for 50% of a mortgage in Mr D’s  name in the sum of $108,000;

   k)Whether the wife has $70,000 in cash in her home.

The evidence

1. The wife relied on the following documents:

   a)Case Outline filed 29 September 2016;

   b)Amended Initiating Application filed 22 September 2016;

   c)Her Affidavit filed 22 September 2016;

   d)Her updated Financial Statement filed 22 September 2016;

   e)the Affidavit of Dr A filed 12 August 2016; and

   f)the Affidavit of Ms M filed 5 October 2016.

2. The husband relied upon the following documents:

   a)Case outline filed 28 September 2016;

   b)His Affidavits filed 28 September 2016, 23 December 2015 and 9 October 2015;

   c)His Financial Statement filed 9 October 2015; and

   d)His Response filed 9 October 2015.

The orders sought

1. The husband sought the following orders:

   1.An order by the court that the Respondent husband continues to hold his interest in the property at Property B2 as the legal owner;

   2.That the Applicant wife shall do within 10 days of this order, all acts and sign all documents as are necessary to lift the caveat she put against this property;

   3.That within 30 days of the date of these orders the Applicant and the Respondent shall:

   a)do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant all the Respondents right, title and interest in the property situated at Property A; and

   b)sign all documents and do all things required by the mortgagee to refinance the mortgage debt secured by the Property A property pursuant registered mortgage number (omitted) into the Applicant’s sole name; and

   c)that the Applicant pay to the Respondent as might be appropriate any cash adjustment required to be made between the property to reflect the distribution of 70% of the net assets to the Respondent and 30% of the net assets to the Applicant, taking into account the assets, liabilities and the contribution of the parties in building the matrimonial assets;

   4.Any other order this Honourable Court deems fit.

   5.That the Applicant met the Respondent's costs of and incidental to this application.

2. The Applicant sought the following orders:

   1.That pursuant to Section 78 of the Family Law Act 1975, there be a declaration by the Court that the Respondent husband holds his interest in the property at Property B2 (or the proceeds of sale thereof) more particularly described as (omitted) (the Property B2 property) in trust for the Applicant wife and Respondent husband as tenants in common in shares to be determined by the Court.

   2.That within thirty (30) days from the date of these orders, the Applicant and the Respondent shall:-

   a)do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant, all of the Respondent’s right, title and interest in the property situated at Property A and more particularly described as (omitted) (“the Property A property”); and

   b)sign all documents and do all things required by the mortgagee to refinance the mortgage debt secured by the Property A property pursuant to Registered Mortgage number (omitted) into the Respondent’s sole name; and

   c)that each of the Applicant and Respondent shall pay to each other as might be appropriate any cash adjustment required to be made between the property to reflect a distribution of 50% of the net assets to the Respondent, taking into account the assets, liabilities and financial resources being retained by each of them pursuant to Orders 2 and 3 hereof.

   3.In the event that the Respondent does not comply with Order 2(c), the property at Property B2 more particularly described as (omitted) be sold and for the purposes of the sale the following orders shall apply:-

   a)the Applicant wife be appointed as the trustee for sale of the Property B property and that the property vest in the Applicant wife for the purpose of the sale;

   b)that the trustee shall proceed to sell the property by private treaty or by public auction and she may be advised, subject to the following:

   (i)the trustee may incur advertising expenses in respect of the proposed sale to be deducted from the sale proceeds;

   (ii)the trustee may retain an agent on the basis that the agent is given the sole agency for a limited period or may list the property for sale with a number of agents in her discretion;

   (iii)the trustee may enter into an appropriate agency agreement with an agent provided that the commission agreed upon does not substantially exceed the recommended rate by the Real Estate Institute of Queensland;

   (iv)the trustee may retain a solicitor of her choice to act for the vendor on the sale;

   (v)the trustee is authorised to enter into a contract for sale in such terms as advised by the solicitors acting on the sale.

   c)The husband is ordered to vacate the property, leaving the property in a clean and sellable condition and thereafter remain away from the said property within 21 days from the date that this order is invoked;

   d)Upon completion of the sale the proceeds of sale shall be disbursed as follows:

   (i)payment of all agents commission advertising;

   (ii)payment of all legal costs and outgoings in relation to the sale;

   (iii)the balance be distributed in a manner to effect an overall 50/50 property division between the parties and that the wife's adjustment be paid to her by way of bank cheque payable to the wife's solicitors, Pullos Lawyers Trust Account.

   4.That the Applicant retain the following assets free from any claim from the Respondent:

   a)any bank accounts held in her name alone;

   b)all jewellery, furniture and personal effects in her possession.

   5.That the Respondent retain the following assets free from any claim from the Applicant:

   a)All bank accounts held in his name alone;

   b)All jewellery, furniture and personal effects in his possession.

   6.That the Applicant retain the liability for and indemnify the Respondent in relation to the following:

   a)any credit cards held in her name alone;

   b)any other liabilities held in her name alone;

   7.That the Respondent retain the liability for and indemnify the Applicant in relation to the following:

   a)all credit cards held in his name alone;

   b)any other liabilities held in his name alone.

   8.That the husband and wife do all acts and things and sign all documents as may be necessary to give effect to the terms of these Orders and that in the event the husband or the wife refuses or neglects to sign such documents and do all such acts as may be necessary to give effect to these Orders then:

   a)the Registrar or Deputy Registrar of the Brisbane Registry the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 (as amended) to execute all deeds and any documents in the name of the wife and/or the husband and do all acts and things necessary to implement these Orders; and

   b)the execution of such documentation by the said Registrar or the Deputy Registrar will have the same force and validity as if this document had been executed by the defaulting party or parties.

   9.Any other Order this Honourable Court deem fit.

   10.That the Respondent meet the Applicant’s costs of and incidental to this Application.

The Law

1. Since Stanford & Stanford[1] in considering applications for alteration of property interests the Court must:

   1.   identify the existing legal and equitable interests of the parties in property;

   2.   consider whether it would be just and equitable in the particular circumstances to make an alteration;

   3.   if an alteration should be made consider the matters contained in section 79(4) and section 75(2) of the Family LawAct in making an adjustment; and

   4.   analyse and consider whether the adjustment under consideration would be just and equitable.

   [1] [2012] HCA 52; (2012) 247 CLR 108

Assessment of the parties under cross-examination

1. The Applicant wife gave her evidence in a forthright manner and I was satisfied that she was at all times doing her best to answer questions put to her in an honest manner.

2. As the Respondent was self-represented there was some obvious discomfort displayed by the Applicant when the Respondent asked her certain questions due to the manner in which he asked them. Nevertheless she presented as a reliable witness at all times.

3. The Respondent husband avoided answering questions in the main and was aggressive from time to time towards the Applicant's Counsel.

4. I formed the impression that the Respondent was intent on painting the Applicant in a bad light rather than giving his evidence in an honest and forthright fashion. Accordingly I did not assess the Respondent as a reliable witness.

5. Having made those assessments wherever the Applicant and Respondent’s evidence is in conflict and to the extent there is no other objective evidence available for me to determine the dispute I at all times prefer the evidence of the Applicant over that of the Respondent.

Evidence regarding the issues

Wife's jewellery

1. The husband asserted that the wife had in her possession $35,000 worth of jewellery. The wife denied this.

2. There was no evidence provided to me that could satisfy me that the wife had in her possession $35,000 worth of jewellery. Indeed there was no valuation of any jewellery put in evidence.

Wife's Suncorp bank account

1. The husband alleged that the wife had $3,210 in her (omitted bank) bank account. The wife disputed that amount. The husband tended exhibit 2 in the proceedings which was the wife's (omitted bank) bank account commencing 18 March 2009 and ending 14 May 2009. The parties separated in 2015.

2. No other evidence was provided to establish that the wife had any amount in her (omitted bank) bank account. In those circumstances I am not satisfied that the wife held $3,210 in her (omitted bank) bank account.

Cash amount of $18,000

1. The wife alleged that the husband removed $18,000 from the home shortly after separation.

2. It was the wife's evidence that she had saved that cash over the years in preparation for a holiday to (country omitted) to see her sister.

3. The wife annexes at FH3 of her affidavit filed 22 September 2016 a bank statement in the husband's name showing that shortly after separation he deposited two separate amounts in the sums of $9,600 and $9,700 into his account.

4. The husband says that those amounts came from the purchaser of the (car model omitted) The husband did not provide any evidence of the sale nor did he call the purchaser, Mr S. The husband's evidence is that Mr S subsequently lost his job and he could not pay the full price of the motor vehicle and as a result the husband says he returned the money to Mr S and kept the car.

5. I simply do not believe the husband when he gives that evidence. I am satisfied that the husband removed $18,000 in cash from the home. I am further satisfied that the $18,000 was money saved by the wife during the marriage[2].

   [2] See Jong & Yeng [2014] FamCAFA 156.

6. Furthermore in the husband's subsequent affidavit of 28 September 2016 there is no mention of any purchaser for the (car model omitted) as an explanation for the amounts deposited in the husband's account there is simply a blanket statement at paragraph 48 where the husband denies taking any money from the wife and accuses the wife of taking money from the joint account.

7. The husband has not provided me with evidence that would satisfy me that he has accounted for the reasonable use of that property and in those circumstances the amount of $18,000 will be added back.

Proceeds of Commonwealth bank totalling $186,353.79

1. The wife provides as annexure FH2 a copy of the husband's bank statement showing that he withdrew the sum of $186,353.79 on 6 July 2015. I am satisfied that the husband withdrew that amount.

2. The husband says in his evidence that the amount is money owing to his brother. The original cheque, dated 6 July 2015 and before proceedings commenced, was made in favour of the husband (see Exhibit 1).

3. On 4 January 2016 the (bank omitted) wrote to the husband advising that the bank cheque dated 6 July 2015 had not been presented for payment.

4. On 11 January 2016 the husband wrote to (bank omitted) (see Exhibit 1) advising that

   ‘in your letter you have advised that I request the person to whom the cheque was sent present the cheque as soon as possible.’

   ‘please be advised that my brother Mr H has lent me the money on two occasions from his accounts (omitted) and (omitted) ($100,000 and $90,000) when the exchange rate of the Australian dollar in the American dollar was $0.97 and is now $0.72 he does not want to lose the huge amount of money with his unfavourable exchange rate at this moment. The cheque will be presented when the exchange rate is more favourable than current exchange rate."

5. As previously outlined the cheque was drawn in favour of the Respondent husband not his brother.

6. On 20 June 2016, and after the proceedings had commenced a further bank cheque was drawn in the sum of $186,343.79; this time in favour of the Respondent husband's brother Mr H.

7. There is no evidence that the bank cheque has been presented. The husband did not call his brother to give evidence either to prove the alleged debt or to give evidence as to whether he is in possession of the cheque.

8. In those circumstances I am not satisfied that the amount of $186,343.79 is owed to the Respondent's brother.

9. I am satisfied that the Respondent husband has at his disposal the sum of $186,343.79 and accordingly that amount will be added into the assets.

Debt alleged by the husband to be owing to his brother $46,085.76

1. This alleged debt appeared in the schedule of agreed and disputed assets and liabilities filed on 11 October 2016.

2. In the husband's Affidavit filed 9 October 2015 there is no reference to the alleged debt nor is there any evidence given in relation to how that debt might be in existence.

3. In the husband's Affidavit filed 28 September 2016 the alleged debt appears at paragraph 23 as a liability.

4. At paragraph 27 of the husband's Affidavit filed 28 September 2016 he sets out that his brother provided him with two amounts of money totalling $232,429.51. It is the evidence of the husband that his brother came to Australia with the intention of establishing a new business and that is why he gave the money to the husband.

5. The husband at paragraph 28 of his Affidavit says the “permanent residents in Australia laws” had changed making it harder for his brother to qualify and he failed to find a suitable business and as result he had to return to his home country.

6. Exhibit 1 contains evidence that satisfies me that Mr H withdrew on 21 February 2011 the sum of $111,442.96 from (omitted bank) account number ending 7002 and the sum of $120,986.55 from (omitted bank) account number ending 1219.

7. Exhibit 5 satisfies me that on 21 February 2011 an account in the name of the Respondent husband and his brother Mr H opened with a balance of $232,399.51. That account was closed on 14 April 2011 and an amount of $148,913.82 was withdrawn.

8. There is no evidence that would satisfy me as to who received the sum of $148,913.82.

9. There is no evidence that would satisfy me that the money deposited into the joint account in the brothers’ names came from the money withdrawn from the brothers’ account on the 21 February 2011.

10. There is no evidence that any loan was established between the Respondent husband and his brother.

11. The husband says that he paid his brother by way of bank cheque the sum of $186,353.79 which leaves a balance of $46,085.76 owing.

12. In circumstances where I am not satisfied that there was a loan established totalling $232,439.55, and I have found that the husband has retained the sum of $186,343.79 I am not satisfied that there is a balance of $46,085.76 or any amount owing. Accordingly the alleged debt will not form part of the assets and liabilities.

Debt to Centrelink

1. The husband alleges a debt to Centrelink of $2,200.

2. Evidence forming part of Exhibit 1 satisfies me that during the marriage the husband received too much aged pension and as a result a debt accrued in the sum of $1,774.89. In those circumstances that amount will be added to the assets and liabilities as a liability.

Alleged credit card debt

1. There was no evidence whatsoever of a credit card debt. The debt appeared at paragraph 23 of the husband's Affidavit filed 28 September 2016 but did not appear as a liability at paragraph 16 in the husband's Affidavit filed 9 October 2015.

2. In circumstances where no evidence was provided in order to prove the debt the debt will not be included in the assets and liabilities.

The alleged debt owed to Mr D and Mr S

1. The alleged debt did not feature in the husband's Affidavit filed 9 October 2015.

2. The alleged debt is raised for the first time in the husband's Affidavit filed 28 September 2016.

3. The husband says the debt arose as a result of a tax invoice issued for work undertaken on the husband's duplex in Property B by Mr D and Mr S.

4. No invoice was provided by the Respondent husband.

5. Neither Mr D nor Mr S were called to give evidence to prove the alleged debt.

6. The wife denied the existence of a debt.

7. In those circumstances I am not satisfied that there is a debt to Mr S and Mr D in the sum of $104,000.

Alleged debt owing to Mr D in the sum of $108,000

1. In the Affidavit filed 9 October 2015 the husband alleges that the debt totals $108,577. In the Affidavit filed 28 September 2016 the husband alleges that the debt totals $108,000.  There is no evidence provided by the husband as to when he paid the sum of $577 to Mr D.

2. The husband's evidence is that on the sale of Property B1 the mortgage was paid out. It is the husband's further evidence at paragraph 38 of his Affidavit filed 28 September 2016 that he and Mr D made a ‘gentleman's agreement’ that he would repay his share of the mortgage in the amount of $108,577 after the sale of ‘property’.

3. The wife annexed at FH15 a copy of a transfer document that satisfies me that the Respondent husband and Mr D sold Property B1 for $630,000.

4. It is not disputed that Mr D retained all of the proceeds of the sale of the property.

5. It is not disputed that Mr D remained registered as a half owner of the property at Property B2.

6. The wife lodged a caveat over the property at Property B2 and joined Mr D in the proceedings.

7. Annexed to the wife's Affidavit at FH16 is a copy of consent orders made on 5 February 2016.

8. That exhibit satisfies me that Mr D transferred his half interest in Property B2 to the husband and that there was no requirement for the payment of $108,000.

9. Attwood Marshall lawyers acted for Mr D during his involvement in these proceedings.

10. The wife gives evidence that on 27 January 2016 her solicitors received a letter which advised as follows:

    ‘at the time that lot 2 on (omitted) was subdivided into 2 separate lots our client and Mr Heath arranged for the (bank omitted) to divide the existing balance of the joint loan with our client and Mr Heath each being individually responsible for one half of the balance which was secured over their respective properties’

    ‘our client is aware that at some stage in late 2014 early 2015 Mr Heath paid out the balance of his mortgage with the (bank omitted)’

11. Annexed to the wife's Affidavit at FH17 is a copy of a settlement statement for the sale of Property B1 showing that the (bank omitted) home loan, being Mr D's share of the loan in the sum of $217,682.38 was paid out in full at settlement.

12. I am satisfied on the strength of that evidence that there is no liability owed to Mr D in the sum of $108,000 or otherwise.

The alleged $70,000 held by the wife

1. The husband alleges that the wife had $70,000 hidden in her home and that he subsequently found the money.

2. The husband provided photographs of bundles of cash in support of that allegation.

3. The wife denies having the money at all.

4. The husband says he photographed the money and put it back in place where he found it.

5. The husband's evidence was totally unreliable and in those circumstances I am not satisfied that the wife has in her possession $70,000 as alleged.

Identifying the existing legal and equitable interests of the parties and the property

1. Having assessed that evidence and noting that the other items of property appearing in the following table were agreed, I am satisfied that the existing legal and equitable interests of the parties is as follows:

Ownership	Description	Value
Assets
1.   Joint	Property A (Property A property)	$575,000
2.   Husband	Property B2 (Property B2 property)	$630,000
3.   Husband	(omitted) motor vehicle	$18,800
4.   Husband	(omitted) motor vehicle	$16,800
5.   Wife	(omitted) Bank Term Deposit	$34,000 (add back value)
6.   Husband	Cash retained by husband at separation	$18,000 (add back value)
7.   Husband	Proceeds of (omitted bank)	$186,353.79 (add back value)
Liabilities
1.   Joint	(bank omitted) mortgage secured by Property A	$82,381
2.   Husband	Centrelink debt	$1,774,89
Net assets	$697,398.95

Is it just and equitable to make an order altering property interests

1. Section 79(2) of the Family Law Act provides:

   ‘The Court shall not make an order under this Section unless it is satisfied that in all the circumstances, it is just and equitable to make the order’.

2. In Stanford[3] the High Court said that the requirement that any order altering legal and equitable interests of the parties must be just and equitable will be readily met where:

   ‘42… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a martial relationship, it will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.’

   [3] Stanford & Stanford (2012) HCA 52; [2012] 247 CLR 108

3. The evidence satisfies me that the parties are no longer living in a martial relationship and that they no longer enjoy the common use of property.

4. In those circumstances I am satisfied it is just and equitable to alter their existing legal and equitable interests.

Consideration of section 79(4)

1. The parties agree that at the commencement of the relationship neither of them had any significant assets.

2. The husband alleges that the wife worked for approximately 7 years in total throughout the marriage. He says she received workers compensation as result of an injury in 1985.

3. The wife says that she held two jobs at the commencement of the relationship and that when the parties moved to the Gold Coast she obtained employment with the (employer omitted) and worked as a cook and a cleaner. Her evidence is in 1995 she suffered an injury at her workplace and underwent back surgery. For the reasons previously outlined I accept the wife’s evidence.

4. It is the wife's evidence that she received a personal injury award in the sum of $5,000, invested that money and that money represented the $34,000 that was held in the (omitted bank) term deposit which has been added back into the assets and liabilities of the parties by agreement as it was used by the wife for legal expenses.

5. It is the wife's evidence that she has not worked in paid employment since 1995 and it is her recollection that the husband ceased employment at around the same time.

6. It is the wife's evidence that the parties supplemented their retirement income by pursuing various hobbies. Her evidence is she sold (omitted) and (omitted) and contributed the proceeds from the sales towards the assets of the parties.

7. It is her evidence that the husband purchased motor vehicles, repaired and resold them and he contributed the proceeds from the sale towards the assets.

8. It is not in dispute that the husband was a carer for the wife. The Wife says he was a carer for some 4 years. The husband says he was a carer for some 11 years. No evidence provided could satisfy me one way or the other however in circumstances where I prefer the wife's evidence over the husband for the reasons previously outlined I am satisfied that the husband was a carer for the wife for approximately 4 years.

9. It is the wife's evidence that the property acquisitions came about as equal financial contributions. The husband does not provide any evidence to the contrary.

10. The husband says he provided a great deal of skilled labour towards the renovations of the properties.

11. The wife says she was solely responsible for all of the household chores.

12. The wife acknowledges the compensation payments the husband received in 1990 and in 2006 totalling $82,535. The wife acknowledges that those monies were used by the husband towards the assets and living expenses.

13. The wife gives evidence that she has met the mortgage payments of $50 per week on the Property A property since June 2016 and has met all of the water and land rates on that property since August 2015 and furthermore that she has maintained that property since that time.

14. The wife is silent as to who has maintained and paid for the Property B property.

15. Having assessed the evidence relating to contributions I am satisfied that the parties over a 45 year period made contributions marginally in favour of the husband.

Section 75(2) factors

1. The husband in annexure MH-6 provides a letter dated 15 June 2015 from the Hospital A.

2. That letter sets out that the husband required further assessment and management of right knee pain. The letter sets out that the husband had some active conditions as well.

3. The wife provides an affidavit filed 12 August 2016 from Dr A and at annexure AI-1 is a letter from the Hospital A to the doctor dated 21 June 2016.

4. That letter sets out that the wife is suffering from a number of medical conditions including peripheral vascular disease, connective tissue disease, arthritis, osteoporosis, major depression, osteoarthritis, anxiety neurosis, hypercholesterolaemia, dry eye syndrome (Bilateral) and chronic insomnia.

5. At AI-3 Dr A provides a response to a letter from Pullos lawyers. That response satisfies me that the wife has severe bilateral knee pain with mobility problems and that she is on a waiting list at the Hospital B for operation to both knees. It further satisfies me that the wife has been suffering from ‘multi-medical conditions including devastating physical and mental problems’.

6. Having assessed the evidence relating to section 75(2) factors of both parties I am satisfied that there should be an adjustment in favour of the wife so that the overall adjustment of property should represent a 50/50 adjustment.

Just and equitable

1. Pursuant to my orders the wife will retain the Property A property free of encumbrance and the sum of $34,000 as an addback.

2. I have found that the husband has available to him the sum of $186,353.79.

3. There are liabilities totalling $84,155.89 and the husband will be responsible for these as a result of my orders.

4. In order to satisfy a 50/50 alteration of property between these parties the wife would need to receive a payment of $88,398.95.

5. The total liabilities plus the total adjustment equals $172,554.84.

6. Having regard to my findings and in particular that I am satisfied that the husband has at his disposal the sum of $186,353.79 I am satisfied that the husband has the capacity to pay out the existing liabilities and the sum required for adjustment.

7. I am further satisfied that the parties came into the relationship with minimal assets and together through their financial and non-financial contributions over a long marriage of 45 years they accumulated a modest amount of assets.

8. I am satisfied that the wife has greater needs moving into the future.

9. Accordingly I am satisfied that the orders I've made are just and equitable.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 22 August 2017