Hodgson and Gatehouse

[2016] FCCA 1857

FEDERAL CIRCUIT COURT OF AUSTRALIA

HODGSON & GATEHOUSE [2016] FCCA 1857

Catchwords:
FAMILY LAW – De facto property – separate periods of cohabitation many years apart – separate finances.

Legislation:

Family Law Act 1975, ss.90SF, 90SM

Cases cited:
C & C (2005) FLC 93-220
Aleksovski v Aleksovski (1996) FLC 92-705

Applicant: MS HODGSON

Respondent: MR GATEHOUSE

File Number: DNC 461 of 2014

Judgment of: Judge Young

Hearing dates: 7 & 8 October 2015, 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Adelaide

Delivered on: 21 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Holtham

Solicitors for the Respondent: Story & Associates

ORDERS

1. That within 14 days from the date hereof, the parties do all things and sign all documents and papers necessary to place the property situated at Property P in the Northern Territory of Australia, on the open market for sale upon the following terms and conditions:

   (i)The parties shall sign an agency agreement with (omitted) Realty;

   (ii)The listing price shall be $520,000, with the parties to accept any offer made which is equal to or above $500,000;

   (iii)Each party shall do all things reasonably requested by the agent in relation to maintaining the property;

   (iv)In the event that the property has not sold within 2 months from being listed for sale, the parties shall accept any offer thereafter which is greater than or equal to $460,000;

   (v)In the event that the property has not sold within 4 months from being listed for sale, the parties shall within 7 further days do all things and sign all documents necessary in order to sell the property at auction with a reserve price of $440,000; and

   (vi)In the event that the property does not sell at auction, the parties shall do all things necessary and sign all documents required in order to have the property listed for a second auction and with the reserve price to be as nominated by the agent.

2. That the husband shall keep up mortgage payments and shall be responsible for the payment of any mortgage arrears to the date of these orders and any such mortgage arrears shall be deducted from his share of the sale proceeds, save that if the husband vacates the property after the date of these orders and prior to sale the parties shall be equally liable for mortgage payments from the time of that vacation.

3. That upon the sale of the Property P property, the sale proceeds shall be distributed as follows:

   (i)First, to pay commission and the costs of sale;

   (ii)Secondly, to pay the amount required in order to discharge the mortgage registered on title;

   (iii)Thirdly, to repay to either party any money expended by them in payment of any up front auction or advertising costs; and

   (iv)The balance to be divided between the parties in the proportion 58% to the husband and 42% to the wife.

4. That from the husband’s share of the net sale proceeds monies be paid as follows:

   (i)The sum of $18,600.00 be paid to Darwin Family Law; and

   (ii)The balance to be paid at the direction of the husband.

5. The wife’s application for spousal maintenance be dismissed.

6. That order 2 of the orders made on 13 November 2014 that the husband pay spousal maintenance to the wife is revoked and any arrears of maintenance discharged.

7. That the husband retain for his own use and to the exclusion of the wife, the following:

   (i)The (omitted) Toyota Hilux motor vehicle (currently registered in the name of the company, (omitted) Pty Ltd);

   (ii)His shareholding in the company “(omitted) Pty Ltd”; and

   (iii)The whole of the monies standing to credit in the (omitted) Bank account numbered (omitted) held in the joint names of the parties.

8. That the wife retain for her own use and to the exclusion of the husband her (omitted) Suzuki Swift motor vehicle.

9. That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

   (i)Each party be solely entitled to the exclusion of the other to all other property in the possession of such party as at the date hereof;

   (ii)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other; and

   (iii)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 461 of 2014

MS HODGSON

Applicant

And

MR GATEHOUSE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a de facto property settlement proceeding under section 90SM of the Family Law Act 1975. The applicant de facto wife (“the wife”) is 52 years old and the respondent de facto husband (“the husband”) is 55 years old. The parties did not dispute the existence of a de facto relationship and did not dispute that the court has jurisdiction. However, they disagreed about many aspects of the history of their relationship. There was little independent corroboration of much of the evidence of the parties. Generally, I found the husband to be the more reliable historian and have accepted his narrative of events unless stated otherwise. The wife admitted to having provided incorrect evidence about her employment and I consider her to be an unreliable witness.

2. In broad terms, the wife sought orders that the wife’s interest in the jointly owned former matrimonial home at Property P (sic) Property P be transferred to the husband and that the husband pay her $300,000. She claimed the sum of $19,108 for legal fees, allegedly paid by the husband to his solicitors from a liquid sum in the nature of capital, should be an “add back”. The wife’s outline of case did not nominate a contribution percentage or an adjustment percentage.

3. The husband’s response initially sought a declaration that the parties’ adult daughter Ms K was an equitable part owner of the Property P property and orders that the property be transferred to the husband and Ms K and that the husband pay to the wife 30% of the equity in the property after deduction of the mortgage debt and Ms K’s equitable interest. Ms K initially intervened as a party in the preceding but subsequently withdrew and abandoned any claims to equitable ownership. The husband’s outline of case document submitted that I should find that contributions were 65% by the husband and 35% by the wife and that there should be an adjustment in the husband’s favour for section 90SF factors so that the asset pool was divided 70% to the husband and 30% to the wife. In addition, the husband sought an order that I discharge an interim spouse maintenance order in favour of the wife which is $9,271 in arrears.

   The history of the relationship

4. The parties began living together in mid-1983. In 1985 the only child of the parties, Ms K, was born. In mid-1986 the parties separated and resumed cohabitation in May 2005. They separated finally in about December 2012. The total duration of the periods of cohabitation was about 10 years.

5. Neither party suggested that the first period of cohabitation should be ignored but I am satisfied that the financial and non-financial contributions to the acquisition, conservation or improvement of any of the property of the parties during that period was not significant and the contributions made by any party to the welfare of the family was limited by the relative brevity of the duration of the first relationship. However, the matters referred to in section 90SF(3) of the Act, particularly the care of the parties’ only child, remained relevant for most of the duration of the intervening period of separation.

6. At the beginning of the first period of cohabitation the wife worked as a (occupation omitted) and the husband was an (occupation omitted). The husband owned a vacant block of land at Property H which his mother had purchased for him in 1982 for $27,000. He borrowed $10,000 and built a shed on the property. When the husband and wife began living together they lived in a caravan on this block. In 1985 the husband borrowed a further sum of around $60,000 or $65,000 and built a house on the land. The parties then separated in mid-1986 and the wife left with Ms K. She said the only property she took was a car worth about $2,000. The husband said that he sold the Property H property in 1989 for $100,000. He said that he repaid his mother the sum of $27,000 from the proceeds and after other deductions received a net sum of about $5,000. There was no evidence to the contrary offered by the wife.

7. After the separation and a period of ill health the husband moved to (omitted) where he worked as a (omitted) and as a (omitted). He said that in 1991 he used savings to purchase a block of land at Property B for $40,000. He said that he sold this property in 1993 for $54,000 and moved to (omitted), Queensland.

8. In 1990, according to the husband, or 1992, according to the wife, Ms K began to live with the husband. Although there is no independent evidence about this I accept the husband’s evidence. It appears that Ms K continued to live with the husband until she turned 18 with the exception of a period when she lived with the wife for about six months in 1997.  The parties are agreed that neither party paid any child support or maintenance for Ms K while she was in the care of the other parent. The husband paid the wife no child support for about five years and the wife paid the husband no child support for about 13 years.

9. During the period of separation the wife entered into other relationships and had four children from those relationships.

10. After moving to (omitted) in 1993, the husband purchased a block of land for $32,000. He said that he borrowed $30,000 and built a two bedroom cottage on the land where he lived with Ms K.

11. The wife moved to (omitted) for a short period in late 1996 and early 1997 to escape marital difficulties with her then partner. She lived in the husband’s home. The husband moved to (omitted) and Ms K lived with her mother in (omitted) for about six months. The husband returned to (omitted) and the wife moved out of the home and resided elsewhere in (omitted). Ms K continued to live with the husband.

12. The husband and Ms K lived in (omitted) until late 1997 when, after a short period living in (omitted), South Australia, they moved to (omitted) in the Northern Territory. The husband worked as a (occupation omitted) in (omitted), using a company, (omitted) Pty Ltd, as the vehicle. The husband was the sole director and shareholder of the company. He was also employed by a local employer. He said that in 1997 he purchased a block of land at Property N for $15,000. He borrowed $175,000 and built three units on the block. He and Ms K lived in one unit and the other two were rented. In 2000 the husband purchased a property at Property A for $27,500 using borrowings of $17,500 to fund the purchase. In 2004 he transferred this property to Ms K as a gift.

13. In 2003 the husband sold the Property G property for $50,000 and applied the proceeds to his savings.

14. In about April 2005 the husband and the wife began living together again in (omitted). Initially they lived in a “granny flat” at Property A. In September 2005 (omitted) Pty Ltd purchased Property T for $40,000. This was a (business omitted) with a residence attached. The husband said that he renovated the residence, putting in a new kitchen and bathroom. The husband and the wife lived there until they relocated to Darwin in 2007. The husband said that the wife made no financial contribution to the renovation and he did most of the work but conceded that the wife may have done the painting. The wife agrees that she made no financial contribution to the renovation but she contributed “time, labour, cleaning and assistance”. Neither party was very specific about the wife’s contribution to the renovation but I find that while the husband made all financial contributions and most of the non-financial contributions the wife’s contribution was not insignificant. The Property T property was sold by the company in June 2007 for $60,000. It is not clear what became of this money but it may have simply remained in the company account and been used for company purposes over time or been used by the husband to live on in later years. Neither party pursued the matter in evidence in any detail.

15. Before the parties moved to Darwin in 2007 the wife was employed in a (employer omitted) in (omitted). Subsequently, she operated her own (business omitted) for about 12 months. The wife claimed that the husband provided $8,000 in order for the wife to run the (business omitted). It was not a financial success. The wife claimed that once the business was wound-up there was $10,000 remaining which was kept by the husband. The husband says that he received no money on the winding up of the business. I accept that evidence.

16. The parties agree that they kept their finances largely separate. The husband said that he and the wife shared living expenses but generally each bought their own food and cooked their own meals. The wife said that she paid for food although she said the husband often cooked for himself separately. She said she undertook gardening, washing and cleaning. I find that there was some sharing of domestic tasks but that this was limited. At the time the parties resumed cohabitation in 2005 the wife cared for some of her own infant children. The affidavit material is somewhat unclear but of the wife’s own children who are not children of the husband at least two appear to have been living with her. In 2005 the wife’s own children, other than Ms K, would have been about 18, 12, 8 and 6 years old. In his trial affidavit the husband says that two of the wife’s children were living with them in 2009. These children would appear to have been the two middle children who would have been about 16 and 12 years old at the time. The fathers of these children paid no child support.

17. The parties moved to Darwin in 2007. Initially they rented a home. The husband sold the units at Property N for $250,000 in late 2007. The husband claims to have received net proceeds of $90,000 after payment of the mortgage and capital gains tax. He said in his trial affidavit that he used the proceeds as a deposit on the purchase of the property at Property P. He said he paid a deposit of $66,000, paid stamp duty of about $14,000, $3,000 for mortgage insurance and about $1000 in conveyancing costs. In cross-examination the husband said he made an error about the source of the deposit for the Property P property. He said that the deposit was in fact from his savings which had been derived from the sale of the Property G property.  

18. I see no real reason to doubt the husband’s evidence on this point. In any event, the source of the deposit is perhaps not particularly relevant because both parties agreed that the wife made no contribution to the initial deposit and given the financial history of the parties, I am satisfied that the deposit was contributed by the husband from assets acquired outside the period of the parties’ cohabitation. The Property P property was purchased in joint names. Neither party mentioned the purchase price in their trial affidavit but the husband’s chronology states that the purchase price was $330,000. I infer that the balance of the purchase price was borrowed jointly and secured by a joint mortgage. If the total cost of purchase, including stamp duty and other expenses, was $348,000 and the husband contributed $84,000 and the balance, some $264,000, was jointly borrowed then the husband contributed $216,000 and the wife $132,000. This equates to 62% from the husband and 38% from the wife.

19. Ms K and her children lived with the parties at the Property P property. Initially she lived in the house with the parties but subsequently built her own house on the property. The husband claims that up until October 2014 he had paid $168,462 in mortgage repayments and Ms K paid $39,400. For the same period he claims that the wife paid about $7,500 and her adult son, Mr N, paid about $4,200. Obviously enough, the mortgage was the joint responsibility of the parties and technically, any other payments made by third parties were made on behalf of the joint mortgagors. The mortgage liability for Property P was $218,240 at trial. The mortgage liability has thus been reduced by about $46,000 since purchase of the property in 2007.

20. The husband and wife were both employed. The wife worked at the (employer omitted) at (omitted). She also worked part-time in a (employer omitted). The husband was employed as a (omitted) and for a local (employer omitted). The wife said he earned a high salary. The wife agrees that she did not contribute to the initial deposit but asserts that she contributed to “one half of the mortgage” on the Property P property by which I take her to mean that she contributed half of the mortgage repayments. She also says that she worked extensively in the garden and landscaping the Property P property which, she said, extended over 5 acres.

21. In December 2009 the wife and two or three (the evidence is not clear) of her infant children and her adult son Mr N moved out of the Property P property into a rented house in (omitted). The wife deposes that she did not make any contribution to the mortgage at Property P after December 2009. The wife returned to live at Property P in December 2010. The husband deposes that the parties lived in separate rooms after this although the wife asserts that they were “occasionally” sexually intimate. The wife was employed full-time as a (omitted) from about 2010 until about June 2012 when, she says, she ceased work because of mental illness.

22. There was disagreement between the parties about the time of their final separation. The wife in her trial affidavit claimed that the parties separated at the end of their second period of cohabitation in January 2014. In oral evidence she corrected this to December 2013. During cross-examination it was put to her that she had been receiving Centrelink benefits from March 2013 and had stated to Centrelink that she was not in a relationship at that time. The wife agreed she had been receiving Centrelink benefits from March 2013. She was asked why she had told Centrelink as she agreed she had that she was separated. She said that the husband refused to support her. I am satisfied that the wife’s claim in her affidavit and oral evidence was incorrect. This was an example of the wife’s general lack of reliability as a witness.

23. The husband said that in December 2012 he moved out of the Property P property and lived with a mate for about six months. He then went to (omitted) where he did (omitted) work. He said that when he returned to live at Property P in December 2013 the wife had moved out taking the furniture with her.

24. I generally accept the husband’s evidence that he and Ms K paid the great bulk of the mortgage repayments on the Property P property. The wife admitted making no further mortgage repayments after December 2009. She also conceded in cross-examination that her income was primarily used to support herself and her children.

25. I am satisfied that during the relationship the husband made the overwhelming bulk of financial contributions. I am not satisfied that the wife’s earnings were more than enough to support herself and her children. Throughout the relationship the fathers of the wife’s children other than Ms K made no contribution to their support or maintenance. The husband, by providing the material and financial basis for housing and perhaps in other ways, made a significant contribution to the support of the wife’s children. It is unclear from the evidence how many of the wife’s children, other than Ms K, lived with the parties during their relationship but it appears to have been at least two and sometimes three and, for a short period, the eldest child who is a young adult. It should also be taken into account that the husband was responsible after the parties’ first separation for the maintenance and support of Ms K for 13 years of her 18 years of infancy without any financial support from the wife.

1. The wife made a significant financial contribution to the purchase of the Property P property as a joint borrower of the balance of the purchase price. However, as against this it is clear that from December 2009 until separation in December 2012 she, on her own admission, made no contribution to the mortgage repayments. I am satisfied that most, if not all, of her income was devoted to the support of herself and her children. The wife made non-financial contributions to the improvement and maintenance of the Property P property although the extent of this is not clear. I also accept that she made some non-financial contribution to the improvement and maintenance of the property owned by the husband’s company at Property T.

   The asset pool

2. The assets and liabilities of the parties at trial were as follows:

Description	Husband	Wife	Total Pool
Property P property	$250,000	$250,000	$500,000
Mortgage Property P	($109,118)	($109,118)	($218,237)
(omitted) Suzuki	$10,000	$10,000
(omitted) Toyota Hilux	$20,000	$20,000
Toyota Hilux finance	($17,812)	($17,812)
Tools of trade	$2,000	$2,000
(omitted) Bank overdraft	($3,813)	($3,813)
(omitted) Visa card	($7,614)	($7,614)
(omitted) MasterCard	($3,745)	($3,745)
(omitted) Bank account	$36,964	$36,964
(omitted) Bank joint account	$645	$645
Spousal maintenance arrears	($9,271)	($9,271)
Ditto	$9,271	$9,271
Legal fees “add back”	$19,108	$19,108
(omitted) superannuation	$27,615	$27,615
(omitted) superannuation	$15,593	$15,593

Contributions

1. Overall, on the basis of the history of the relationship, I assess the contributions of the parties as 35% to the wife and 65% to the husband. However, there are some assets that require special consideration, including superannuation and the husband’s award of victims of crime compensation. Both parties agreed that they kept their financial affairs largely separate. Superannuation was not a joint savings vehicle and I am satisfied that the parties’ life together was not a joint enterprise so that each should be seen as contributing to the other’s accumulation of superannuation interests as would be the case in many, if not most, marriages or marriage-like relationships. In any event the existing superannuation interests in accumulation funds, $27,615 to the husband and $15,593 to the wife, reflect closely the contributions I have found above. The practical result will be to leave those interests undisturbed. I am satisfied that, given the small amounts of superannuation involved, that a single pool approach is warranted[1].

   [1] C & C (2005) FLC 93-220.

2. The other factor is the husband’s award of victims of crime compensation. At trial this stood at $36,964. I propose to treat this in the same way as a damages award which would normally be treated as the receiving party’s sole contribution[2]. I am satisfied that this amount, received as the result of serious offences committed against the husband as a child and apparently in the nature of compensation for mental injury, should be seen as his sole contribution. The wife did not submit otherwise and her submissions appeared to suggest the amount should be ignored. As this amount is almost 10% of the net assets I intend to make a further adjustment for contributions so that the husband’s contribution is 70% and the wife’s is 30%.

   [2] Aleksovski v Aleksovski (1996) FLC 92-705 at p 83,437.

   The health and earning capacity of the parties and other section 90SF(3) factors

3. The husband adduced evidence from a psychiatrist and a psychologist about his mental state. His treating psychiatrist, Dr C, said that he had diagnosed the husband as suffering from a major depressive episode and PTSD and that he had been unwell since 2012. He said that there had been an equivocal response to treatment with some but no marked improvement. Dr C considered that the stress of litigation was a perpetuating factor in the husband’s illness. He hoped that in about six months there would be marked improvement and that the husband would be able to participate in part-time work which did not require much concentration or energy. He did not expect a full recovery for at least 12 months and noted that PTSD is a chronic condition.

4. I accept this evidence and find that the husband is not presently fit for full time work. Following an application by the husband to reopen his case to adduce evidence that the wife was, contrary to her trial affidavit, undertaking regular employment the wife also applied to reopen her case to adduce evidence that the husband had recently renewed his (occupation omitted) licence and, she said, it should be inferred he was employed. It was put to the husband that he would not have renewed his (omitted) licence at a cost of some $2,000 unless he was receiving some remuneration through work. The husband said that one of his mates had paid for the registration and he had permitted that mate, a (occupation omitted), to use his status as a (occupation omitted) to (occupation omitted). The husband’s answers in cross-examination were difficult to follow and unsatisfactory. The husband admitted that his mate had given him $3,000 to $4,000 at various times. The husband denied that he had done any (omitted) work as he was qualified to do as a (occupation omitted). I think it is likely that the husband has received some remuneration from his friends and contacts in the (omitted) industry from time to time for the use of his status as a (occupation omitted). I also think it is likely that the husband hopes to find some employment at a later stage.

5. When the evidence reopened the husband adduced evidence that his application for a Disability Support Pension had been accepted. He said that a condition of entitlement to that pension that it is expected that he will not be able to work for at least two years. He said that he did not think he would be able to work in the future. He said that he will receive a pension entitlement of $440 a week. I accept that the husband is presently incapable of full-time work. However, I am sceptical about the husband’s claim that he is incapable of any work and will not work again in the future. That claim is inconsistent with the evidence of his treating psychiatrist.

6. As mentioned, the husband applied to reopen his case to adduce evidence that the wife was employed at the time of trial. Her trial affidavit, which was affirmed on 28 September 2015, deposed to a deterioration of her mental health as a result of the husband’s denigration of her. She said she suffered a “complete nervous breakdown” in January 2014 and was prescribed medication. She implied she was unable to work. She said “I’m hopeful at some time in the future, I may return to (occupation omitted), as I’ve done previously”. She said she had done some casual (employment omitted) and in cross-examination, said the (employer omitted) had given her a “donation” for the work. The wife did not call medical evidence to support her claims.

7. When the case was reopened the wife filed a further affidavit disclosing that she had been in regular employment since 26 August 2015 as a (occupation omitted). Apart from the first week of her employment she appears to have worked between 27 and 34 hours a week. Her net pay varied between $678.60 a week and $793.95 a week. In her updated Financial Statement she claimed that her average remuneration was $588 a week before tax and, together with Family Tax Benefit and Grant Assistance of $333 a week, her income was $921 a week. Without attempting to make definite findings about the wife’s actual average remuneration, I am satisfied that she is able to support herself through employment. In view of her marked unreliability as a witness I am not able to find with any certainty whether the wife has been unable to work at any time and I am sceptical of her claims to have been unable to work due to illness in the past.

8. This is of significance because an order was made by another judge of this court on 17 October 2014 that the husband pay to the wife a lump sum of $5,000 which was subsequently characterised as spousal maintenance. On 13 November 2014 the court ordered the husband to pay the wife the sum of $550 per week by way of spousal maintenance. At this time the husband was not employed. However, there was a significant sum, about $150,000, in his company account which appears to have been the residue of the winding up of his (omitted) business. The husband claims to have since expended this sum in paying business debts, payment of legal fees and in living expenses. There was no real attention paid to the expenditure of the sum during the trial and I have no basis for doubting the husband’s claims, particularly as I accept he was unfit for full time work for much of the period since the separation of the parties.

9. The husband is in arrears in the sum of $9,271 pursuant to the spousal maintenance order made on 13 November 2014. I am not satisfied that the preconditions for the making of that order were satisfied, particularly the requirement in section 90SF(1)(b) that the receiving party be “unable to support himself or herself adequately”. I consider it distinctly possible that the wife misrepresented the extent of her ability to support herself at the time that order was made. Accordingly I will revoke the order and discharge the arrears.

10. It was said by the wife that because the husband’s legal fees, some $19,108, were paid from what was, in substance, capital rather than income that the legal fees should be an “add back”. I accept that submission.

11. Another matter that must be considered is the treatment of the wife’s credit card and overdraft debt. This amounts to $15,172. There was no evidence adduced by the wife about the circumstances of her indebtedness, when she had become indebted and what she had become indebted for. In the circumstances of this case, where both parties agreed that their financial affairs had largely been kept separate apart from the purchase of the Property P property and the sharing of living expenses, this is not satisfactory. The parties separated some 4 ½ years ago and I am not satisfied that the husband should, in effect, share in this debt of unknown provenance. I propose to exclude this sum from the final balance sheet.

12. The husband submitted that on the basis of his health and diminished earning capacity I should make an adjustment of 5% to 10% in his favour. While I accept that he is presently unable to engage in full time employment I am not satisfied that he will be unable to work in the future. In the past he has been able to earn a relatively high income as a (occupation omitted), earning in the financial years ending 2012, 2013 and 2014 (the last year he had substantial earnings) $91,757, $61,208 and $59,691 respectively.

13. The wife is able to support herself through employment together with her infant children who are not children of her relationship with the husband. Nevertheless, she will live in modest circumstances and the orders I propose to make will see her receive a relatively modest capital sum from the sale of the Property P property. In addition she will remain responsible for her overdraft and credit card debt.

14. In all the circumstances I am not satisfied that it is appropriate to make any further adjustment.

    Conclusion and orders

15. The parties have agreed that the Property P property should be sold. It was agreed that for the purposes of the trial the value of the property was $500,000 and I use that value for the following calculations. The final balance sheet is as follows:

Description	Husband	Wife	Total Pool
Property P property –net value	$140,881	$140,881	$281,762
(omitted) Suzuki	$10,000	$10,000
(omitted) Toyota Hilux - net	$2,188	$2,188
Tools of trade	$2, 000	$2, 000
(omitted) Bank account	$36,964	$36,964
(omitted) Bank joint account (operated by husband)	$645	$645
Legal fees “add back”	$19,108	$19,108
(omitted) superannuation	$27,615	$27,615
(omitted) superannuation	$15,593	$15,593
Net total	$229,401	$166,474	$395,875
Adjustment required	$47,712	($47,712)
If 70%/30% split	$277,113	$118,762	$395,875

1. If the Property P property sells and achieves the agreed value and net proceeds are $281,762 the proceeds will need to be adjusted so that the husband receives $47,712 more than the wife. The husband would thus receive $164,737 and the wife would receive $117,025. If some other price is achieved the net proceeds should be divided in the proportion 164,737/281,762 or 58% to the husband and 117,025/281,762 or 42% to the wife.

2. If there are any arrears of mortgage at the time of these orders those arrears should be deducted from the husband’s share. If the husband vacates the property prior to that time and prior to sale the parties are to be jointly and equally liable for mortgage payments and if there are arrears from that period they should be deducted from the net proceeds of sale before those proceeds are divided in the proportions identified.

3. There was some disagreement between the parties about the agent for the sale of the property. The parties previously agreed to appoint (omitted) Realty and that firm should continue to be the agent for sale unless the parties agree otherwise.

4. The husband sought an order that the sum of $18,600 be deducted from his share of the sale proceeds and paid to Darwin Family Law, the husband’s previous solicitors. I assume he gave an undertaking in similar terms on the transfer of his file. I would ordinarily expect these matters to be dealt with by the delivery to the husband’s current solicitors or his conveyancing agent, whoever is authorised to receive the proceeds of sale, of an irrevocable authority for payment to the former solicitors. Nevertheless, I will, somewhat reluctantly, make an order in these terms as the husband has indicated to his current solicitor a willingness to have such an order made. The husband also sought an order that $2933.30 be deducted from the sale proceeds and paid to Ms K. The basis of that order was not explained to me and I decline to make such an order.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 July 2016