HINKLER & ANGLIN

[2019] FCCA 2309

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINKLER & ANGLIN [2019] FCCA 2309

Catchwords:
FAMILY LAW – Adjustment of property interests – assessment of contributions.  

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Jones & Dunkel (1959) 101 CLR 298

Kennon & Kennon (1997) FLC 92-757

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Robb & Robb [1994] FamCA 136

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Applicant: MR HINKLER

Respondent: MS ANGLIN

File Number: PAC 1039 of 2016

Judgment of: Judge Obradovic

Hearing dates: 8 - 9 April 2019

Date of Last Submission: 29 April 2019

Delivered at: Parramatta

Delivered on: 22 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Mando

Solicitors for the Applicant: Mic Lawyers

Appearing for the Respondent: In person

ORDERS

1. The Respondent is to pay to the Applicant, pursuant to section 79 of the Family Law Act 1975, the amount of $38,750 by making minimum fortnightly payments of $150 to commence 28 days after the making of these Orders. For the purposes of such instalments the Applicant shall within 7 days provide to the Respondent details of his bank account where such payments are to be made by way of electronic funds transfer.

2. As between the Applicant and Respondent, and subject to the above Orders, the Applicant shall retain all interest in and entitlement to:

   (a)All personal property and financial resources now in his respective possession or control.

   (b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively.

   (c)All interests in life insurance policies and superannuation funds standing in his sole name respectively.

3. As between the Applicant and Respondent, and subject to the above Orders, the Respondent shall retain all interest in and entitlement to:

   (a)Lot … in Deposited Plan … being the property at G Street, Suburb H in the State of New South Wales;

   (b)All personal property and financial resources now in her respective possession or control.

   (c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively.

   (d)All interests in life insurance policies and superannuation funds standing in her sole name respectively.

4. Subject to the above Orders, the Applicant and Respondent shall be and remain liable for any debts in his or her sole name respectively at the date of these Orders and in this respect shall indemnify and hold harmless the other from all and any liability in relation thereto.

Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Hinkler & Anglin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1039 of 2016

MR HINKLER

Applicant

And

MS ANGLIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant husband and the respondent wife married on … 2003. They separated on 5 November 2014 and were divorced on 11 April 2016.

2. The husband brings these proceedings seeking an adjustment in his favour of the wife’s interest in the only real estate held by the parties. The wife opposes the making of any such order and says in essence, things should remain as they are.

Relevant Legal Principles

1. The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford.[1] This approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].

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

   [2] [2014] FamCAFC 19

   [3] [2014] FamCAFC 91

   [4] [2014] FamCAFC 203

2. In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. The requirement is so satisfied in this instance.

3. Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.

4. The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]

   [5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120

5. The just and equitable requirement is “one permeating the entire process”[6].

   [6] Bevan supra at [86]

Factual Findings

1. Both the husband and the wife were born in Country J, on … 1965 and … 1964 respectively. When they met in … 2003, the wife was an Australian Citizen whilst the husband did not have a legal right to permanently reside in Australia. He was here on a student visa which had limited rights.

2. After their marriage, the husband applied for permanent residence on the basis of his relationship with the wife. Prior to this the husband had lodged a protection visa application claiming he was a refugee. This visa application was withdrawn and the husband subsequently applied for a subclass 309 partner visa. In order for the application to be processed, the husband had to be offshore. Consequently, in about … 2005, the husband travelled to Country J. The wife paid for the airfare and sent him approximately $2,000 whilst he was overseas.

3. The husband was granted a spouse visa in … 2006 which carried with it the right to work in Australia. It was after this that the husband returned to Australia. Until that time, and at least from … 2003, the husband did not have the right to work in Australia and was not in any paid employment which was declared for taxation purposes in the jurisdiction.

4. At the time of their marriage, the wife had a child with Down Syndrome from a previous relationship who was born on … 1996. Mr A was almost seven years old when his mother married the applicant. Due to his special needs Mr A is not able to live independently. The wife remains responsible for caring for him and will continue to do so for the rest of her life or at least for as long as she is able to. Mr A’s father has at all relevant times paid child support for him.

5. In … 2001, the wife purchased a house and land package at G Street, Suburb H in the State of New South Wales (“G Street, Suburb H property”). This house came to be the former matrimonial home and continues to be the wife’s residence where she remains living with Mr A to this day. The dwelling at the G Street, Suburb H property was completed in … 2002. The purchase of the land settled in … 2001, and the wife obtained a loan from Westpac to fund the purchase of the land as well as the build of the home. She also received a first home owner’s grant. The cost of the house which was built on the land was $186,554 and the purchase price of the land was $62,000.

6. The parties wedding was rather a large affair of some 200 guests. The cost of the wedding was solely paid for by the wife, including the cost of the wedding rings.

7. In addition to the expenditure of funds by the wife noted earlier, the wife also paid the following:

   a)$5,000 to the husband’s migration agent and lawyer in the period 2003 to 2005;

   b)$1,400 for the withdrawal of the husband’s protection visa application;

   c)$2,000 for the husband’s driving lessons;

   d)$5,000 - $6,000 towards the various costs associated with the husband’s spouse visa application between 2004 and 2005; and

   e)In … 2005, $1,940 being the application fee to the Department of Immigration for the spouse visa.

8. In about … 2004, the wife borrowed a further $20,000 against the G Street, Suburb H property. She says she did this because she was not able to meet all of the costs associated with maintaining herself, her child and the husband, particularly the additional expenses relating to the husband’s visa application.

9. Between the date of marriage and … 2006, the wife was the sole income earner and sole financial provider. She paid the mortgage and all other household expenses, including utilities, without any financial assistance from the husband. The husband, as noted earlier, was in Country J between … 2005 and … 2006, a period of some 9 months.

10. At the time of the parties’ marriage, the wife had been working for the same company as a factory worker for approximately nine years. She continued in this paid employment until … 2006, when the wife commenced, firstly TAFE studies and later part-time University studies. The wife has since completed her degree and consequently accumulated a HECS debt of $53,500[7]. The husband was supportive of the wife completing her studies.

    [7] Rounded to nearest $100

11. For the entirety of the parties’ relationship, the wife has been in receipt of child support, and government assistance. She is at present not employed and has not been in paid employment since 2006. Notwithstanding same, the wife has at all relevant times been able to meet her living expenses, her son’s living expenses, the mortgage repayments and other expenses associated with the G Street, Suburb H property. The wife says that the husband did not make any of the mortgage repayments and that all mortgage repayments throughout the parties’ relationship were met solely by her.[8]

    [8] Including from moneys she received for and on behalf of her son

12. After he arrived back in Australia from Country J in … 2006, the husband remained unemployed. Between … and … 2006 he undertook studies for a certificate. He commenced employment with his current employer in … 2006. As at July 2018, the husband was employed full-time and earning $24.54 per hour with a minimum of 38 hours per week.

13. The husband’s evidence is that from the time he started working as a labourer in … 2006 and that for a period of time until … 2007, he worked two jobs. Over the years the husband’s income has increased.

14. Since separation, it appears the husband has not managed to accumulate any savings. This is despite paying only $150 per week in board/rent post separation until April 2017 for a period of some two and a half years. Since then he has been paying rent of $1,800 per month. There is no evidence that his income has changed. According to the husband’s Financial Statement filed 15 June 2016, he was earning $1,172 gross per week and his weekly expenses were just shy of $900, the bulk of which was a credit card repayment said to be $500 per week. Given that there was no credit card liability otherwise noted in the Financial Statement (Part K) the asserted repayments are difficult to accept. The only credit card statements which were available were those annexed to the husband’s “trial” affidavit. There are no statements for 2016. However, the statements which are annexed show a credit limit of $15,000 and minimum monthly repayments of anywhere between $14 and $250, but usually less than $100.

15. The husband asserted with some force[9] that he was responsible for making the mortgage repayments on the G Street, Suburb H property after he started working. A number of submissions were made that he was a hardworking contributor and by no means a “free-rider” nor a “gold digger”.  Annexed to his affidavit were close to 700 pages of photocopied documents, for the most part statements issued by various financial institutions. Part of his evidence was a table completed by him which purported to summarise the payments that he had made not only towards the mortgage, but also various other household expenses. The husband painstakingly went through his bank statements summarising various cash withdrawals and what he said were corresponding deposits into the wife’s bank account from which the mortgage was paid. The difficulty with this evidence is that many of the withdrawals and deposits do not in fact correspond, mostly as far as the amounts are concerned but also sometimes the dates.

    [9] Through his affidavit and also through his representative’s submissions

16. What the husband has done in prosecuting his case, is that he has taken a dollar for dollar approach in the contributions he asserts after he commenced working in 2007. What the husband has not done with the same mathematical precision however, is set out how much it cost the wife to support him during the first three years of the parties’ marriage, nor how much of the “contributions” he asserts he made were moneys he spent on personal necessities and expenses, and which would have been incurred by him whether or not he had been married. He also does not account for the fact that but for being married and the wife being the owner of the G Street, Suburb H property he would have had to pay for somewhere to live. This does not mean he was a “free-rider” as his Counsel was at pains to point out. It simply means that it is not appropriate to count as “contributions” what otherwise the husband would have incurred anyway, married or not. After all, he had to eat, clothe and have shelter. The legislation refers to contributions “to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them” and “the contribution made by a party to the marriage to the welfare of the family… including any contribution made in the capacity of homemaker or parent.”

17. The Court accepts that the husband worked diligently throughout the parties’ marriage when he was permitted by law to do so, and that he earnt an income which was in general applied towards the family unit made up of himself, the wife and the wife’s child. He bought groceries, paid bills and otherwise financially provided for himself and the wife. However, the husband’s income was also applied for overseas trips the husband took alone, and towards his family in Country J. 

18. The wife also bought groceries, paid bills and otherwise provided for herself and the husband.

19. The wife, as already noted, asserts that the mortgage repayments were made by her. She says she had a bank account with the ANZ Bank, which was associated with her son, from which she withdrew money and paid into the mortgage account. The wife was not cross-examined about this detail, notwithstanding that those bank statements appear to have been available through subpoenaed documents[10], nor were the statements tendered in the husband’s case to discredit the wife[11]. It is therefore appropriate to draw a Jones & Dunkel[12] inference in respect of those documents which were available to the husband but which were not tendered in the proceedings, noting that this was an issue in the proceedings.[13]

    [10] Annexed to the husband’s affidavit is a selection of statements said to be produced under subpoena from ANZ. The cover letter to those documents, dated 28 November 2017 (page 428 of Husband’s affidavit) indicates that bank statements for the period 1/6/06 to 31/12/14 for account held in the name of the wife and her son have been produced to the Court pursuant to a subpoena issued 15 November 2017. Those statements do not form part of the evidence in the husband’s case.

    [11] Indeed they were not tendered in the wife’s case.

    [12] (1959) 101 CLR 298

    [13] While a similar inference may be available in respect of the wife’s case, it is not drawn. The wife’s evidence in respect of how the payments were made could have been tested properly in the proceedings by experienced Counsel who acted on behalf of the husband. There is no obligation to corroborate one’s evidence.

20. On balance, the Court finds that it was the wife and not the husband who made the loan repayments associated with the G Street, Suburb H property.

21. At the time of the commencement of the parties’ relationship, the wife owned a motor vehicle being a Motor Vehicle B, which she had purchased in 2002. In … 2013, the Motor Vehicle B was traded in for a Motor Vehicle C which was purchased in the husband’s name, but subject to a loan. From November 2014, the wife has made all of the loan repayments for the vehicle, including a balloon payment of $8,400 made on 29 March 2019, in respect of the Motor Vehicle C.

22. A second motor vehicle was purchased by the husband in 2008, this being a Motor Vehicle D. It was purchased for $19,000 and the loan associated with it has been paid off. In 2017, the husband purchased a different car, another Motor Vehicle D[14] and at the time of hearing he had a liability of some $26,000 or $27,000 associated with that car.

    [14] Presumably trading the older Motor Vehicle D in

23. In terms of the contributions as homemaker and other contributions to the welfare of the family, the Court finds that such contributions are overwhelmingly in the wife’s favour. The Court accepts that the wife cooked most, if not all, of the daily meals, that she cleaned the house and did all of the washing. The husband did assist with household chores from time to time, but the bulk of the work fell to the wife. In this regard, the Court also notes that the husband worked in paid employment in the afternoons and evenings, from 3pm to 11pm and that he was not present in the home for much of the day. He usually woke around 12noon, and left the home around 1pm to get to work on time. He was home usually after midnight.

24. During the parties’ relationship the husband became ill requiring a medical procedure. The wife provided assistance to the husband during his recuperation from the illness.

25. The husband asserts that he made contributions of the kind recognised in Robb & Robb[15]. The wife denies that the husband took on any responsibilities to care for her son. The Court accepts the wife’s evidence that whilst she was working full-time her son was at school or family day care, and that she was primarily responsible for delivering him in the morning and picking him up in the afternoon. On the days the child went to school there was organised by the school special transport which the wife utilised. It was otherwise the wife who cared for Mr A, even whilst she was studying. The husband’s involvement with Mr A’s care, the Court finds, was minimal. 

    [15] [1994] FamCA 136

26. The husband continues to be in paid employment and has a capacity to continue earning an income. He is only 53 years old and has at least another decade before he reaches the minimum retirement age of 65.[16]

    [16] To become eligible for the aged pension

27. The wife, whilst now holding a University degree, has only worked as an un-skilled labourer. She has the full-time care of her adult son, who has special needs and is reliant upon her; he cannot live independently. The wife has not worked since 2006. There is no evidence that she has any borrowing capacity. If an order was made adjusting the parties’ property interests such that a lump sum payment was to be made to the husband, given the wife’s financial situation it is highly probably that she would have to sell her home and that she would not be able to purchase another one. If she had significant cash with a financial institution this might affect the assessment of the benefits she currently receives from the Commonwealth government. The effect of any order for a large lump sum payment to the husband adjusting the property interests of the parties would see the wife and her adult child with special needs, dislodged from their home where they have lived for the past 17 years and which the wife worked hard to ensure she could purchase. There is no evidence that she could purchase her home, or its equivalent, today.

28. The husband’s case likewise does not disclose any evidence of borrowing capacity, although submissions were made that if an order was made in line with the husband’s application then he would be able to utilise this as a deposit and purchase himself a home. The husband has a home, that is, he has somewhere to live. Whilst it might be nice for the husband to be able to purchase a property, he has been able to house himself appropriately post separation. Not everyone owns their own home.

1. The husband, who was represented by a solicitor and had Counsel briefed at final hearing, ran a very aggressive case. The wife was self-represented.

2. Exemplifying the attitude of the husband displayed during the proceedings are his submissions[17] as follows:

   While the Respondent is self-represented, the submissions are nonetheless farcical in some respects.

   And

   The truth is that … [the wife] would not have entered this relationship had she not perceived that she stood to gain something.

   And

   The Respondent is otherwise outlandish and unreasonable in her assertions. Her submissions are characterised by a lack of regard for the law that applies to everyone, including the Respondent.

   [17] Applicant’s Submissions in Reply filed 26 April 2019 settled by Mr Mando of Counsel

3. There were many problems with the husband’s evidence. His affidavit was drafted very poorly and contained many paragraphs which were simply not admissible, whether on the basis of hearsay or opinion, or were otherwise conclusions and submissions which were made without reference to any facts. While the Court appreciates the difficulty in family law matters particularly where the evidence spans many years, the rules of evidence still apply. This much was conceded by Counsel for the applicant, who indicated that he agreed to be bound by the rules of evidence.[18]

   [18] The relevance of this ‘concession’ is not clear to the Court in circumstances where the provisions of the Evidence Act 1995 (Cth) relevantly apply and where there was no application made for an order dispensing with the rules of evidence, whether by virtue of s190 Evidence Act 1995 or otherwise.

4. The husband’s evidence was at times exaggerated, for example:

   a)He claimed to have been employed as a “health care worker” from … 2006 when he did not obtain the necessary qualifications until … 2007;[19]

   b)The joint bank account was opened in … 2006. The husband’s evidence is that his salary was always deposited into that account. The account does not show any salary deposits until 16 August 2006, in the amount of $785.87, yet his evidence is that he commenced working in … 2006;

   c)His oral evidence is that he receives $1500 plus $611 in salary packaging per fortnight. The bank statements disclose different amounts.

   [19] His oral evidence is that he was employed while he was studying but that he did not qualify for a certificate until … 2007.

5. A major concern for this Court in respect of many of the property adjustment applications which come before it, is what appears to be an attitude of ‘everyone should get a prize’. There is no right to a property adjustment order, there is only the right to make an application for a property adjustment order. It is not axiomatic that if parties were together (whether married or not) there will be an order adjusting one of the parties’ interests in lieu of the other. It is apposite to be reminded that the discretionary nature of the jurisdiction is not “palm tree justice” and of what the High Court has said in Stanford & Stanford[20]:

   [20] [2012] HCA 52; (2012) 247 CLR 108

   [37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   …

   [40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…

6. While reasonable minds may differ in the ultimate result, the onus is always on the applicant to prove that any order adjusting interests should firstly be made, and secondly if such an order is to be made, what that order might be. It is imperative that the two are not conflated.

Valuations

1. There are a number of difficulties with the evidence pertaining to the value of the G Street, Suburb H property.

2. What is not in issue is that the property was purchased in … 2001 by the wife for the amount of $62,000 plus $186,554 for the build.

3. Tendered in the proceedings is a written opinion dated 5 April 2019 as to the market value of the G Street, Suburb H property, purported to be made by Mr E. Mr E has not deposed to his opinions in an affidavit nor was he called to give evidence in the proceedings. There is no evidence of his qualifications or relevant expertise, except in so far as the signature block of the market opinion refers to “Certified Professional Valuer AVI CPV # …”. Mr E did not have access to the property. His opinion is based on a number of assumptions which are noted in the written opinion. Those assumptions have not been established by any evidence.[21] The bases for his opinions are not explained in the usual manner one might expect.[22] The written opinion reads “We are of the opinion that the current market value of the property is $585,000”. There is no explanation as to who the “we” referred to in the written opinion is formed by, nor how the presumably joint conclusion was arrived at. While there is some evidence of what are purported to be comparable sales, at first glance they do not appear to be comparable in time (May 2018, July 2018 and February 2019) with the opinion being as at April 2019, and apart from some brief descriptions the sources of which have not been identified, it is impossible to understand why the sales prices of those three stated properties are said to be relevant to the opinion given.  Furthermore, there is absolutely no explanation as to how the opinion as to why the property had “an open market value” of $275,000 as at … 2003 was arrived at. It has also not been explained in the applicant’s case why that might be a relevant date, noting that the parties married on … 2003.

   [21] Nor have they been shown to be incorrect

   [22] Having regard to the authorities such as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

4. Similar problems plague a written opinion of Mr F, which values the G Street, Suburb H property as at … 2003 at $285,000.

Contributions

1. Given the two opinions provided as to the value of the G Street, Suburb H property as at the date of the parties’ marriage (or around that time) for the purposes of these reasons, the Court finds that the property was valued at $280,000. This assessment is made by taking mid-point between the two available opinions. The loan secured against the property at the date of marriage was $171,566. As such, it is more likely than not that the equity in the property as at the date of the parties’ marriage was approximately $110,000.[23] Ultimately however, it is not so much the exact value of the property but more so the use to which the property was put during the parties’ relationship which is relevant.

   [23] rounding to the nearest $10,000

2. It was not put to the Court by either party that the reason for the increase in value of the property over the years was due to any particular improvements carried out by either of the parties, but rather it appears to be a result of market forces over the years.

3. As at October 2016, the loan stood at $82,463 and the property was worth approximately $585,000 as at April 2019.

4. Since separation, the wife has been entirely responsible for all of the mortgage repayments, and all of the maintenance and upkeep of the property. The husband has not contributed in any manner, whether directly or indirectly towards this property post separation.

5. At the time of the parties’ marriage, the husband’s visa status was such that he did not have permission to work in Australia. The wife was his visa sponsor, and she paid the costs of the visa applications lodged by or on behalf of the husband and was the sole income earner until … 2006. Some of this money was funded by way of increase to the mortgage over the G Street, Suburb H Property.

6. As has been said, property adjustment proceedings are not the Court’s chance to dispense ‘palm tree justice’. It is for the applicant to satisfy the Court that the property interests of the parties should be adjusted per se and then in what manner. The Court must be satisfied that it is just and equitable to make any order adjusting the parties’ property interests.

7. The parties were in a relationship for just over 11 years, and for part of that time the husband lived in Country J.  The wife brought in the only significant asset of the parties. The husband enjoyed the benefit of living in the home owned by the wife. He made contributions, both financial and non-financial during the period they lived together. The wife similarly made both financial and non-financial contributions during the period the parties lived together. Her contributions during the relationship are overall assessed as significantly greater than those of the husband. Furthermore, the husband’s contributions however, do not “erode” the initial significant contribution by the wife. But for the wife coming into the relationship with the G Street, Suburb H property there is no suggestion that the parties would have between them owned any other property or that they had sufficient funds or the intention to purchase a property together at any time during their marriage. The husband did not start working until … 2006. Despite not being in paid employment, the wife has continued to receive an income.[24]

   [24] Albeit for the purposes of s74 the Court would not be entitled to take much of that income into consideration

8. The parties both shared in the home-maker role, albeit not equally, with the wife making the bulk of the contributions in this regard.

9. In respect of the 75(2) factors the Court accepts that the husband has a higher earning capacity than the wife. 

10. There is limited property. The primary asset of the parties’ of the marriage, held by the wife, is the G Street, Suburb H property. This property was acquired and held significant equity at the time of the parties’ marriage. The increase in value in the property has not been the result of either party’s personal endeavours. But for the wife purchasing that property, there would be no major asset held by the parties’ at present. It is not the Court’s role to undertake social engineering or the equalisation of assets or financial resources.[25]

    [25] See for example: Kennon & Kennon (1997) FLC 92-757 at p 84,303

11. The pool of assets at time of hearing comprises of the following:

Assets and Liabilities	Ownership	Value
G Street, Suburb H property	Wife	$585,000
Mortgage	Wife	($82,500)
Motor Vehicle C	Wife	$15,000[26]
Car finance	Wife	($16,000)[27]
Motor Vehicle D	Husband	$20,000[28]
Car finance	Husband	($26,000)
Superannuation	Wife	$42,000
Superannuation	Husband	$50,000

[26] As at October 2016

[27] As at October 2016

[28] As per caseoutline

1. Due to there being no evidence of current valuations of the parties’ motor vehicles, noting that the wife has paid off the loan associated with the Motor Vehicle C and that there is no evidence of the current value of the loan associated with the Motor Vehicle D, these items will be removed from the balance sheet for the purposes of assessing the pool. It is not possible to make any findings as to their value at the time of hearing. Therefore, the net pool is assessed as having a value of $595,000.

2. Given the overall contributions and findings made by the Court it is just and equitable that there is an order adjusting the parties’ interests of 15% in the husband’s favour.

3. Each party has assets in their respective possession, custody and control. They are each the legal owners of such assets. They each have liabilities in their own names. The husband has more superannuation than the wife and he will continue to accrue superannuation ever whilst he continues to work.

4. An adjustment of 15% to the husband would see the husband retaining his superannuation and receiving a cash payment from the wife in the amount of $38,750[29]. Given that the wife has very limited financial means, and that there is no evidence as to her borrowing capacity, she ought to be provided with a significant period of time to make such a payment. The Court finds that fortnightly payments of $150 is, in the circumstances, a reasonable way to make such a payment, given the wife’s previous capacity to make car loan repayments post separation. The wife will of course, be at liberty to pay the amount sooner if able to do so.

[29] Total assets: $595,000 - 15% to the husband = $89,250 and 85% to the wife = $505,750

1. The justice and equity of this case dictate that the parties’ interests are not to be adjusted in the manner argued by the husband, but rather as found herein. Orders will be made accordingly.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 22 August 2019