Hyde and Hyde

FAMILY COURT OF AUSTRALIA

HYDE & HYDE

[2007] FamCA 515

FAMILY LAW - PROPERTY - Value of property
FAMILY LAW - PROPERTY SETTLEMENT - Superannuation

APPLICANT:

MR HYDE

RESPONDENT:

MRS HYDE

FILE NUMBER:

DGF

447

2004

DATE DELIVERED:

14 February 2007

ADDENDUM DELIVERED:

29 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Barry J

HEARING DATE:

5 and 6 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R.G. Weil

SOLICITOR FOR THE APPLICANT:

Jane Curtis & Associates

COUNSEL FOR THE RESPONDENT:

Mr P.D. Sweeney

SOLICITOR FOR THE RESPONDENT:

Rennick & Gaynor

Orders

Upon receipt of the sum set out in paragraph 6 of these orders the husband transfer to the wife all of his interest in the property “[A]”.

The wife is to indemnify the husband for any liabilities attaching to the property.

Within twenty-eight (28) days the wife withdraw the caveat over the property at M.

Simultaneously with the transfer of “[A]” the wife is to transfer to the husband all of her interest in M.

The husband is to indemnify the wife for any liabilities attaching to the property.

By no later than 30 September 2007 the wife is to pay to the husband the sum of $67,362 free of interest to that date.

If the amount specified in paragraph 6 is not paid by 30 September 2007 interest is thereafter payable in accordance with the rate prescribed by the Family Court Rules.

In the event the sum referred to in paragraph 6 together with interest in accordance with paragraph 7 has not been paid by the wife by the 31 December 2007 then the property at “[A]” is to be forthwith sold.

In the event “[A]” is to be sold in accordance with the terms of paragraph 8 hereof the husband is appointed trustee with power of sale.

As trustee with power of sale the husband is authorised to appoint a real estate agent and solicitors to act on the sale and to determine in his sole discretion whether the property is to be sold by private treaty, auction or otherwise.

Sale proceeds from the sale of “[A]” are to be disbursed as follows:

a.in payment of the costs of sale including advertising and marketing of the property for sale and any real estate agent’s commission and legal costs;
b.in payment of any outstanding rates, levies or other charges attaching to the property;
c.in discharge of any mortgage debt or other encumbrance of the property;
d.in payment of the sum of $67,362 together with any interest accumulated as provided for by these orders;
e.the balance to be paid to the wife.

Each party retains all other chattels currently in their possession save that the wife deliver to the husband within twenty-eight (28) days the early Australian sideboard, his firearms (4), his tools, the Massey Ferguson tractor and a selection of the family photographs.

Each party is to retain the superannuation benefits and insurance policies currently held in their names.

The capital gains tax payable on the sale of shares be paid from moneys held in the wife’s Solicitor’s Trust Account. Presentation of a Notice of Assessment from the Australian Taxation Office evidencing the liability for such tax by a party shall be sufficient authority for the sum to be paid to that party. In the alternative a letter from a certified tax agent detailing the amount of capital gains tax arising from the sale of shares shall be sufficient proof for the wife’s Solicitor to release the payment to that party.

The balance of any funds remaining after payment of capital gains tax shall be distributed 65% to the wife and 35% to the husband.

The solicitor for the wife is to provide the parties with a detailed accounting of the disbursal of moneys in the Trust Account.

The parties do all acts and things and execute any documents reasonably necessary to give effect to these orders and should either party fail to execute any documents within seven (7) days of their being so requested a Registrar of the Court at Melbourne is hereby appointed and authorised to sign such documents on behalf of such party.

Either party have liberty to apply on seven (7) days written notice to the other.

It is certified that it was reasonable this matter is one proper for the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 447 of 2004

MR HYDE

Applicant

And

MRS HYDE

Respondent

REASONS FOR JUDGMENT

The parties to this litigation are the owners of a small rural property which in part overlooks the Q River backwater in B. Determining the value of this property is but one of the issues in dispute between the parties.
Other issues include:
·    the value to be attributed to the husband's superannuation. Is it to be valued in accordance with the Family Law Regulations as contended for by the husband, or in accordance with the value set out in the latest statement from the superannuation fund? Counsel for the wife submitted the court should make an order dividing the husband's super fund in the payment phase, as was done by Young J in the decision of BAR v JMR, a decision delivered in this registry in May 2005;
·    whether the husband has an equitable interest in a property at R, a property which is registered in the name of his partner, Ms R?;
·    whether the husband's liability under the Viridian line of credit should be taken into account and, if so, at what figure?;
·    what are the wife's employment prospects?;
· what is an appropriate percentage division having regard to the factors the court is required to take into account pursuant to section 79 and 75(2) of the Family Law Act?;
·    what approach should be adopted to the value of the parties' chattels? The chattels are of relatively modest value. It is a measure of the level of antagonism between the parties that they have not been able to agree on such a basic issue.
The wife was born … September 1952. She will turn 55 later this year, at which time she would be in a position to access her superannuation benefits if she was intending to no longer be in permanent full‑time employment. The husband was born in 1954. He says his current intention is to continue working for the next five years as an officer in the Victorian Public Service
The parties commenced cohabitation in about 1979 or early 1980. They married in November 1982. Separation was on … January 2000. Two children were born during the course of the marriage, a boy in March 1989 and a girl in June the following year. A divorce decree was granted in March 2003. Notwithstanding the fact that the parties are divorced, for the sake of convenience, I propose to continue to refer to them as the husband and wife respectively.
The husband filed his initial application seeking orders for property settlement and orders in relation to children's issues almost three years ago in March 2004. The only issue remaining to be determined is that of the property settlement. At the time cohabitation commenced, each party was a member of the Victoria Public Service.
For the wife it was pressed that she had been contributing to her superannuation fund for a period of some seven years prior to the relationship commencing. For the husband it was pressed that he had been contributing to his superannuation fund for the last seven years since separation. These respective claims were not the subject of any challenge.
The wife retired from the Public Service in 1993. In paragraph 34 of her second affidavit the wife deposes:
“Since 1993, my employment has largely been on a part-time basis, having regard to child care responsibilities and my health.”
The husband left school at the completion of secondary school. At age 20 he entered the Victorian Public Service, and he remained there he says for four and a half years before resigning. He re-entered the Public Service in 1985, and has continued in that occupation to the present time.
After separation, in about May 2002, the husband commenced a relationship with Ms J. It is somewhat unfortunate that Ms J was not called as a witness in the proceedings, as there are obviously issues involving the husband's financial relationship with her which seemed material issues. At paragraph 4 of his trial affidavit the husband says:
“In May 2002, I assisted [Ms J] to purchase the vacant six-acre block at [R], by lending her the sum of $40,000.”
The background to that is the wife had placed a caveat on the M property which was the property securing the Viridian line of credit at the Commonwealth Bank, but this did not preclude the husband from drawing down a further advance on a mortgage over the subject property to pay the $40,000 to Ms J. As noted earlier, the extent to which the husband has any interest in this land is an issue very much in dispute.
Since separation the wife has continued to reside in the former matrimonial home with the children. She has not repartnered. The older child left high school and entered an apprenticeship in the local area. He has recently left that employment and returned to take up study at a technical college. The younger child continues with her high school education. The husband pays child support in accordance with his income, and has contributed to the children's school fees.
The parties had a share portfolio valued at about $60,000. This was sold to assist the parties to meet various expenses. After payment of some joint expenses, each received $21,362, the balance of about $15,000 was retained in the wife's solicitors' trust account for payment of capital gains tax attributable to the share transactions. It is agreed between the parties that after payment of capital gains tax, the balance left in the solicitor's trust account is to be distributed in accordance with the percentage distribution applicable to the other assets.
Orders sought by the applicant husband are set out in an outline of case document filed by leave on 5 February 2007. The husband seeks orders:
“(1) The husband retain the property at [M], and the husband pay and indemnify the wife for all liabilities she may or has incurred with respect to the said property.
(2) Both parties each retain all other chattels currently in their possession, save that the wife deliver to the husband the early Australiana sideboard, his firearms, or his tools, the MF tractor and selection of the family photographs, or copies, otherwise the furniture and chattels at [A]be divided between the parties by agreement.
(3) Within 60 days, the wife pay to the husband the sum of $157,000.
(4) The husband transfer his interest in [A] to the wife and the wife and indemnify the husband for all liability he may or has incurred with respect to the said property.
(5) The wife withdraw her caveat lodged over the title to the property at [M].
(6) Each party retain the superannuation benefits and insurance policies currently held in their names.”
For the respondent wife, the minutes of proposed orders sought by her were annexed to the wife's summary of argument filed on 17 October 2006. That was in the following terms:
“(1) The husband transfer to the wife the entirety of his interest in the family home and property situated at [W](the [W] property)
(2) Contemporaneously with the transfer of the [W] property, the wife indemnify the husband in respect of any and all mortgages, liabilities, encumbrances, outgoings, rates, taxes and charges in respect of the [W] property.
(3) The wife transfer to the husband the entirety of her interest in the property at [M], Bairnsdale (the [M]property) at the expense of the husband.
(4) Contemporaneously with the transfer of the [M] property, the husband indemnify the wife in respect of any and all mortgages, liabilities, encumbrances, outgoings, rates, taxes and charges in respect of the [M] property.
(5) Unless otherwise specified in these orders:
(a) each party be solely entitled to the exclusion of the other to all property, including choses in action, in the possession of such party as at this date;
(b) each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c) all insurance policies remain the sole property of the owner named thereunder;
(d) each party be solely liable for and indemnify the other against any liability encumbering any assets to which that party is entitled pursuant to these orders; and, (e) any joint tenancy in any real or personal property be otherwise expressly severed.
(6) Registrars clause.”
At the commencement of the hearing, counsel for the wife produced an aide‑memoire document setting out a summary of the assets and liabilities as asserted by the wife. In that document, as an addendum after the assets and liabilities are particularised, is a notation by counsel:
“The total value of the assets (excluding the husband's superannuation and chattels) is $1,079,070. If the wife was to receive 63.5 per cent of the net property (including her superannuation), and 40 per cent of the husband's superannuation, she would accordingly receive 63.5 per cent of the net amount of property, being $875,770, and 63.5 per cent of her superannuation being $233,000. The husband's superannuation would be divided in the payment phase. The total amount to be received by the wife would be $685,209. This would be as follows:
(1) [W] property                  $630,000
(2) motor vehicle                $    9,000
(3) [H] Super  $    5,300
(4) wife's [B] super             $ 39,000
(5) payment from husband $   1,109
The wife would then split a hundred per cent of the [P] superannuation in her name to the husband.”
At the conclusion of the hearing in the course of final submissions the wife’s counsel produced an amended aide-memoire. Apart from some minor changes to the figures given for assets and liabilities which largely reflected the evidence in this matter, counsel sought orders in the following terms:
“The total value of the assets (excluding the husband's chattels) is $1,187,285. To retain the home property and property in her control or possession, she would retain assets as follows:
(1) [W] property                 $630,000
(2) motor vehicle                $   9,000
(3) [H] Super   $   5,300
(4) wife's [B] super             $ 39,000
(5) share proceeds             $ 21,362
(6) chattels  $ 22,000
The wife receives a total of $726,662 of net assets of $1,187,285. This is 61.2 per cent of the property and superannuation. The wife would then split 100 per cent of the [P] superannuation in her name to the husband. The husband's superannuation would be divided in the payment phase.
Had the husband discharged the Viridian loan, then the net assets would be increased by $38,000. This would mean the total property and wife's superannuation was $1,125,285. By retaining the abovementioned property, the wife would receive 59 per cent of the property and her superannuation other than the [P] fund. The husband's [E] fund would then be apportioned in the payment phase.”

ISSUES IN DISPUTE

Value Of [A property], Former Matrimonial Home

Mr C, who is a registered valuer from B, was engaged as a single expert witness to value this property. The date of his valuation is 25 October 2005. There was general agreement that there had been no price movement up or down since that time. Neither party had sought an updated valuation. At page 6 of his valuation under the heading Valuation Rationale, Mr C has noted:
“In establishing a value for the subject property, we have had regard to the existing zoning of rural living schedule 1, and the fact that the property could be subdivided at some future date. The shape of the property does restrict its overall ability to be subdivided to a certain extent as a major court would have to be put into the property running along the northern section or northern boundary to give scope to subdivision running towards the south.
Any prospect of subdivision of course would require significant costs in the form of roadworks and servicing, together with fencing and planning application and survey. However, we have endeavoured to consider the fact that the property could be subdivided within this valuation. The approach the valuation has been by direct comparison with comparable or similar style properties within the immediate area.”
It was the husband's contention that the property had a higher value if it was valued on the basis it was actually to be subdivided. The wife's legal representatives say the husband was ordered to produce relevant documents to the valuer on this very issue early in the proceedings, but nothing was done pursuant to the directions made.
The husband's legal representatives say they wrote to the wife's solicitors in more recent times wanting to appraise the valuer of certain documents relating to a plan of subdivision. It is claimed the wife's solicitors refused to allow such communication with a single expert. The husband's legal representatives did not seek to call evidence from a property developer, surveyor or real estate agent to support the proposition that at $630,000 the property was undervalued.
I accept that all times, the parties were conscious of the subdivision potential of the block. Indeed it was the husband's evidence that at the time they acquired the property, the parties viewed it as their superannuation nest egg. The husband's original proposal for property settlement orders included a proposal to divide the property in half with the wife retaining the portion with the home on it.
In her first affidavit, the wife deposes at paragraph 26 as follows:
“A serious issue in this case is the question of valuation of [A property]. The property has been valued by local estate agents retained by me at around 350 to 400 thousand dollars. [The husband] has also had a valuation from [Mr H], a sworn valuer, and he also rejects this valuation of $440,000. [The husband] rejects all of these valuations, alluding to subdivision or potential. He has, however, not provided any substantiation of this or costings of how such a development, if allowed, could be profitable. Indeed the advice I have received is that such a proposed subdivision would be unlikely to receive a counsel approval. Also I am informed from my inquiries that such a development would be unprofitable as a result of the outlays required.”
Paragraph 29:
“On 23 August 2004, this matter was listed for conciliation before Registrar Windebank. As the case could not be resolved, Registrar Windebank adjourned it to the trial notice list. It was also ordered that real estate valuations be conducted with [the husband] to provide calculations of subdivisional costs and plan of survey as provided to him by [Mr S](the person who he said was his adviser on this issue).”
In a subsequent affidavit filed 2 November 2005 at paragraphs 57 and 58, the wife deposes:
“(57) [The husband’s] only contribution of any sense towards the property at [W], is to suggest that it be sold or, in the alternative, developed into a multi-lot subdivision. He has for some time been promising that he has subdivisional plans and costings in place which would assist a valuer in being able to determine the proper value of the property if subdivided. He has had a considerable period of time and has given many promises through his solicitors that he will make this information available. We are now at the valuation stage and he has still not been able to do so. This has considerably hamstrung the process of valuation to the extent that this process is now late, and I only hope that the pre-trial conference can still be maintained.
(58) I have made my own independent inquiries of local real estate agents and valuers, and have formed the view that any multi-lot subdivision of the property would be uneconomic and should not be embarked upon. No material has been produced by [the husband] to suggest otherwise.”
In the course of the oral evidence of Mr C, which he gave by way of telephone link-up, when questioned on the subdivisional potential of the property, he gave evidence that:
“The allotments would be valued at between $210,000 and $275,000 for a total of some seven allotments, although the allotment with the matrimonial home on would fetch approximately $240,000 more. I think the total estimate of the gross sale proceeds from any subdivision would be in the order of $1.89 million.”

He added:
“The figures are tentative.”
He then proceeded to give an almost endless litany of development costs such as interest on the acquisition price, selling costs, an estimate of 30 per cent for profit and risk for any property developer wishing to undertake the exercise, consultants' fees, legal fees, valuation fees. His evidence was to the effect that a more thorough analysis would need to be done before he could give reliable evidence.
The cross‑examination of Mr C did not reveal any basis other than an entirely speculative one for increasing the value which he had previously ascribed to the land. Mr C was engaged as a single expert by the parties. Nothing was said in the course of his oral evidence which would lead me to adopt a higher figure than that given in his valuation. I propose to adopt the value of $630,000 for A property.

Whether The Husband Has An Equitable Interest In The Property At [R]

Ms J paid $62,000 for this vacant land in about May 2002. She borrowed $22,000 from a lending institution, and the husband advanced her $40,000. Ms J, as earlier noted, was not called as a witness at the hearing. The husband says in his trial affidavit at paragraph 4:
“[Ms J] works on a full‑time basis for the [Local] Council, and we contribute equally to all of our joint expenses.”
The husband filed three financial statements in March 2004, November 2005 and June 2006 respectively. In relation to Ms J's income, in his first financial statement he indicated it was not known. Presumably he had forgotten to ask her. In the second financial statement, it was given as $699 per week, and in June 2006, $543 per week. The explanation for the drop in income was not canvassed in evidence before me. It is not particularly relevant.
This matter had previously been set for hearing in October 2006, but unfortunately was not reached at that time. I was informed, and it was not challenged, that in or about August 2006, some four years after the original borrowing, Ms J repaid $40,000 to the husband, but without any payment of interest. Ms J had sold another property in her name to allow her to raise the $40,000.
It was contended by counsel for the husband that the husband had a 40 over 62 per cent interest in the property in accordance with established principle. There was no reliable evidence of value of R property, other than a broad estimate given by the wife in her affidavit, until Mr C was called to give his evidence by telephone about the subdivisional potential of A property. Mr C had obviously been requested by the wife's solicitors in the meantime to do a drive-by valuation of R property. He valued it at $175,000. This evidence was not challenged, although the husband denied that he had any interest, equitable or otherwise, in the R property.
In the course of his oral evidence he denied he had any appreciation of the value of the land. Yet in the course of cross‑examination of Mr C, he was able to supply his counsel with instructions as to the unimproved value of the property for rating purposes. I do not accept the husband's claim he has no interest in this property. My reasons for so finding are as follows:
a)In the husband's first financial statement of 25 March 2004 at item 53, under the heading "Financial Resources" is the entry, "Equitable interest in R property, not known." This entry was not repeated in the subsequent financial statements. The husband was singularly unconvincing in endeavouring to explain how this entry appeared in his financial statement in 2004.
b)A more compelling basis for determining that the husband does in fact have an equitable interest in R property is the fact that in his tax returns over a number of years, he claimed the interest that he was paying on the Viridian line of credit, which included the $40,000 paid for the land, as a tax deduction as if it was invested in a negatively geared property.
I have no difficulty in finding the husband has an equitable interest in R property. The more difficult issue is to ascribe a value to same. I do not accept the submission that the husband has a 40 over 62 per cent interest in the property. Ms J has repaid the $40,000. There was no evidence who has paid the mortgage and instalments, but the husband deposes to sharing joint expenses equally. I would infer that if Ms J has paid the mortgage instalments on the $22,000, the husband would have made a greater share of the payments for the household expenses. In all the circumstances, it is likely the husband and Ms J have an equal interest in the subject property. There was no evidence led of the current indebtedness on the property.
I propose to proceed on the basis that, albeit it is now approaching some five years since the property was acquired, Ms J has contributed, whether by borrowing or repayment of the loan, the sum of $22,000. She has also contributed $40,000 now by way of equity on the property. If this was to be repaid to her from a capital sum, it would leave the parties with a capital gain and equity of $108,000, that is the $170,000 minus the $62,000. The husband's share of the $108,000 would be $54,000. There is no evidence to inform the court as to what deductions for outgoings and interest would be available to reduce the incidence of capital gains tax. Estimating capital gains tax at one-third produces a figure of $18,000, selling costs would be in the order of $2000, leaving the husband's interest at $34,000.
Counsel for the wife in his first aide-memoire suggested bringing the husband's equitable interest in the property to account at $24,000. As a result of Mr C's evidence, he increased that to $69,000. I am minded to include the amount of $34,000 as an asset of the husband in the assets of the parties, however I will hear submissions at the conclusion of the delivery of these reasons, but prior to the issue of final orders, whether there should be any further adjustment to the figures I have adopted, and if so, on what basis.

Husband's Liability Under The Viridian Line Of Credit

The husband's evidence is he operates one bank account which presumably is linked to the Viridian line of credit to allow repayments of interest on this account. If he wishes to draw down on the line of credit, it is deposited to the operating account. The husband's evidence is that his salary is paid to the operating account, as is the rent from the M property when it is tenanted. The husband submits the sum of $39,000 should be brought into account as a liability to be deducted from the matrimonial assets.
The husband concedes when Ms J repaid the sum of $40,000 to him in August 2006, the total of the line of credit was $69,000. As I understand the husband's evidence, $40,000 was utilised in reducing the line of credit. In the course of final submissions for the husband, counsel for the husband conceded he could not argue with the liability being brought into account at $29,000. I note that in the husband's financial statement of November 2005, he had given the balance of the Viridian line of credit as $66,000. If the $40,000 was repaid, as it should have been, it would have reduced the liability to $26,000. Counsel for the wife, although including the liability of $39,000 in the aide‑memoire, included footnotes suggesting the liability should be disregarded altogether.
No documents were tendered. There was no evidence whether the husband has given disclosure of the Viridian line of credit and the bank account statements. If he has not done so, why were the documents not subpoenaed from the bank? The evidence on this issue is most unsatisfactory as to the fluctuating nature of the Viridian line of credit; what was the husband using it for? In light of the available evidence before me and the concession made by counsel for the husband, I propose to reduce the liability to the sum of $29,000.
The investment property at M was for many years rented to the husband's brother and his wife. The wife contends it was at a favourable rental. The husband said his brother carried out extensive renovations and improvements to the property. I propose to disregard the issue whether it was at a favourable rental or not. It is not uncommon to rent to a reliable person. It was a situation that persisted for quite a few years.
However the property has been vacant since April 2006. When the husband was questioned about this seemingly wasted potential income, his evidence was to the effect that the property needed renovations. When queried why he hadn't carried out such renovations, he adopted a beguiling but politically incorrect stance to the effect, "Why should I pay for improvements to this property when the applicant will end up with at least 50 per cent of its value?" This attitude seemed to apply whether he was to carry out the renovations in his spare time or to engage tradesmen to do so.
The same attitude prevailed in relation to the issue of renting the property in an unrenovated state. It was obvious from the husband's evidence that, with the trial date looming, he was not about to do anything which might produce a greater income on his part or a greater value for property under his control. Had the property been rented, it would be reasonable to expect the line of credit would have been further reduced. However, I accept that the husband has paid rates, presumably insurance and other outgoings on the property.
In his first financial statement of March 2004, the mortgage figure for the Viridian line of credit is shown as $72,984. This obviously included the $40,000 advanced to Ms J in May 2002. In November 2005, the mortgage debt is shown as $38,000 seemingly prior to the $40,000 being repaid. In June 2006, the mortgage debt is shown as $66,000. Once the $40,000 was repaid by Ms J, there is no direct evidence, as I recall, what the husband did with that. Had he immediately repaid it to the Viridian line of credit that would have reduced the liability to $26,000. That is the figure that I propose to adopt.
It is not clear to me what the level of disclosure has been by the husband as to the movements in and out of the Viridian line of credit, but in view of the stance taken by counsel, I propose to adopt the figure of $26,000. I will bring the husband's failure to rent the property into account as a negative contribution when considering issues to be taken into account pursuant to section 79. I have noted the footnotes for counsel for the wife, but I am not persuaded that the Viridian line of credit does not relate to a genuine liability of the parties. It was a mortgage liability in both names.

The Wife's Health And Employment Prospects

From the wife's evidence and medical reports filed on her behalf by Dr T, a general practitioner, and Mr D, a behavioural psychologist, it is apparent the wife was intent on convincing the court she suffered numerous serious medical conditions which precluded her from engaging in anything other than minor part-time employment. In Dr T's report at page 2, she summarises the position as follows:
“In summary she suffers from hyperthyroidism, coeliac disease, restless leg syndrome, chronic fatigue syndrome, hormone imbalance. All of these affect the others and all have a basis in her mercury poisoning. [The wife] has been very diligent in researching all she can about her condition, and she has tried as many treatments as she can.”
Dr B is a specialist in occupational medicine and public health medicine practising in Melbourne. He swore an affidavit on 15 February last year annexing a detailed report he had prepared as a single expert, dated 24 January 2006. In the period leading up to trial, as with the husband, it would appear the wife has not engaged in any endeavour which may improve her financial position. At page 3 of Dr B's report it states:
“She noted that she had been receiving Centrelink payments. She initially undertook a small job in reception. This was working for a personnel group, which she did for six months. She noted it was for a very casual part-time job. She then went back to working in an opportunity shop. She then obtained a position delivering chickens. She stated that she was driving around the [B] area delivering to retail premises. However, she stated that she had had great difficulty driving. She did this job for about one year.
She then has assistance from the Commonwealth Rehabilitation Service and was referred to the gym, which helped her. She also attended a naturopath. It would appear that the consultations were paid for by the Commonwealth Rehabilitation Service, but she paid for medication. She noted she has also seen [Dr G]. She saw [Dr G] in the 1990s and he made a diagnosis of chronic fatigue syndrome. She continued to look for suitable work and returned to undertaking delivery of chickens.
She was then involved in a community program and had further retraining to give her more skills at using a computer. However, she stated that she had problems functioning physically and cognitively. She noted that she was "massively anxious with serious problems".”
At page 6 of the report under the heading “Examination”, the doctor observed:
“However it was my impression that she was tending to maximise her symptoms of the various complaints that she has suffered over the years and her restricted work capacity.”
At page 7 the doctor further commented under the heading “Investigations”:
“She noted that she has found her work difficult to arrange as a result of her health problems, and she has a limited earning capacity for the future. She noted her son has been assessed by Centrelink as suffering with a disability and she is receiving a carer's allowance.”
At page 9 of his report, Dr B observes:
“I note there is a lack of evidence of objective physical pathology associated with her complaints of fatigue and muscle aches and pains. There is a lack of evidence of pathological investigations in regard to thyroid function levels. I consider the issues affecting her work capacity relate to her anxiety, and I consider that she is suffering from a functional somatic syndrome. A functional somatic syndrome is a condition where the patient complains of a physical illness without an organic disease explanation, and is void of demonstrable structural lesions or established biochemical changes. Alternate modern descriptions are somatoform disorders and medically unexplained symptoms. Other terms used are psychosomatic syndromes or somatisation.”
Dr B was not required for cross‑examination by either party. Accordingly there was no challenge to this evidence. As Dr B had been engaged as a single expert witness, I was somewhat surprised that the wife had subsequently obtained reports from Dr N, a neuropsychologist, and Mr D, a behavioural psychologist.
I note in Dr N's report at page 2, he appears to have plagiarised himself in the sense that the report makes reference to the claimant and the insurer and subsequent reference to the Supreme Court Rules. It appears Dr N may have transposed this aspect of his report from some earlier report. This aspect is of course not relevant. It does not impact on the veracity of his observations and conclusions. Dr N's conclusions do not differ in any material way from those contained in the report of Dr B. Dr N was not required for cross‑examination, and his evidence is also before me on an unchallenged basis.
Mr D was called to give evidence. Having perused Mr D’s report and having the opportunity to hear his oral evidence, I reached the conclusion that he was something of an apologist for his patient. Dr B concludes the wife's condition is largely psychosomatic. Mr D regards the wife's conditions as existing, but they can be treated with dietary supplements and other methods as detailed in his report.
His oral evidence was to the effect when he had last seen her, she was feeling much better and was not as anxious or depressed. He expected further improvement at the conclusion of these proceedings, as did the other experts. Mr D added that it might take some two years for her to reach "some level of normality". On balance, I prefer the evidence of Drs B and N to that contained in the evidence of Mr D. On balance I particularly prefer the evidence of Dr B. Ultimately it would seem there was not a great deal of difference between their final opinions.
I am not satisfied the wife has a medical condition which would preclude her from working close to a normal full-time working week. However, as I observed during the course of the proceedings, the wife is an anxious woman. She presents very well, but she is 54 years of age living in a provincial area. She has no particular qualifications to allow her to engage in highly paid remunerative employment. With the best will in the world she will have difficulty obtaining employment that will produce an income comparable to that earned by the husband.
The wife's evidence was to the effect that she would only be able to continue, if at all, on a part-time basis as she has done in the past. I am not satisfied this is the case, but because of her age, lack of qualifications and the environment in which she has chosen to reside, she is not likely to earn a high income.
I also note that she has the option of electing to retire when she reaches 55 years of age later this year to allow her to access her superannuation benefits. This would restrict her ability to earn income other than on a modest part-time basis as set out in the oral evidence of Ms P.

Value Of Chattels

The parties engaged Mr X as a single expert to value chattels on the respective properties. His valuation is annexed to his affidavit filed 26 July. His report reveals plant and equipment on A, $10,800. This includes a Massey Ferguson tractor valued at $1800. The husband specifically asks for this tractor. There was no evidence adduced from the wife opposing such an order as sought by the husband. Subject to final submissions on this issue, I will distribute the plant and equipment $9000 to the wife and $1800 to the husband, with a subsequent order for the husband to receive the Massey Ferguson tractor upon the making of these orders.
Other chattels include cattle in the wife's possession, $1400; horse gear currently used at equestrian events in the wife's possession, $6590; horses in the wife's possession, $6000; husband's tools, $250. Thankfully Mr X was not required for cross‑examination. There was no valuation of the furniture, jewellery, if any, or other chattel items the parties may possess.
It was agreed in the course of final submission, the wife's motor vehicle, a 1994 Toyota, would be valued at $9000. The wife had contended for this figure, while the husband said it was worth $11,000. Nobody produced any evidence on the issue. Counsel for the husband made the concession, quite appropriately in the course of final submissions, to adopt the wife's figure.
In her financial statement, the wife swears that her household contents are valued at $2700. It has been seven years since separation. The wife has had to accommodate the children. I propose to ignore household contents. They were not valued. There is insufficient evidence to say what the value of the husband's household contents are, but I will bring into account the items; the plant and equipment and the horses and the cattle et cetera as detailed in Mr X’s valuation and I will bring them into account at his value, which was unchallenged.

Husband's Superannuation

Ms P, a certified financial planner with a masters in business administration from Monash University and a masters of professional accounting from the same institution prepared a report which is annexed to her affidavit filed 19 June 2006. Updated calculations are set out in exhibit 1. These calculations are annexed to a letter from Ms P’s firm dated 29 January 2007.
Ms P values the husband's superannuation as at 31 December 2006, in accordance with the Family Law Regulations, at $263,651. Ms P’s opinion expressed in paragraph 6 of her report is to the effect:
“The total value of [the husband’s] superannuation interest, determined using the regulations, is approximately $77,300 lower than the total of the ETP components (that is [E] value of [the husband’s] superannuation interest). Please note that the [E] Superannuation Scheme ([E]) has changed the structure of the fund from an untaxed fund to a taxed fund. These changes are effective from 1 July 2005.”

Exhibit 5 is a document the husband received from his superannuation fund, the E fund, valuing his benefits as at 30 June 2006 as a total gross retirement benefit as a taxed fund is $326,827. That document reveals that for the year ending 30 June 2006, the husband's final overall salary used for calculations was $59,800, and from this salary he made contributions of $4889. On my calculations, this approximates 8 per cent, which is the maximum amount the husband is permitted to contribute to the scheme. A notation to this exhibit indicates that this has been the percentage contributed since 1995.
In the report annexed to her affidavit, Ms P values the husband's superannuation entitlement in accordance with the formula provided in the Family Law Regulations as at the date of separation - 1 January 2000 - at $116,620 compared with the current value I have previously noted of $263,651. The husband's evidence was to the effect that he would continue to work for a period of five more years. Whilst I have reservations about some aspects of the husband's evidence, I am inclined to accept his evidence on this aspect.
As a result of this litigation it is likely he will have significant costs to pay. Ms J has just acquired a property valued at about $400,000 in which the parties intend to reside but there will be a significant mortgage liability. It is not clear whether the mortgage liability is in the order of $100,000 or $200,000, but I expect it will need the husband's ongoing financial assistance from his employment to meet the mortgage repayments.
The value of $326,827 referred to in exhibit 5 is the amount the husband would receive if he were to retire at the present time. The reality is the husband cannot access his superannuation till age 55 at the earliest. On accessing his super prior to age 55, the husband's interest would be taxed at a rate of 21.5 per cent if he were able to access his fund presumably on the grounds of severe hardship. As I understand the evidence, at age 55, the first $135,000 would be tax-free, and after that he only has to pay 15 per cent of the balance.
The evidence indicates the wife has a total superannuation entitlement in three separate funds of $235,600. The three policies are:
·    the P Super Plan  $189,000
·    B Super  $ 39,000
·    H Super  $    5,300
The wife's oral evidence in relation to the H fund, as I recall, was that that had increased in value to the present time to $7658. I will hear submissions on that aspect. I have done my calculations, leaving it at $5300 at this point in time. That updated evidence of the wife was not reflected in the calculations given to me by either counsel.
If the wife was eligible to access these funds at age 55, as I understood Ms P’s evidence, the first $135,000 would be tax-fee, and after that she would be liable for taxation at 15 per cent. It was not canvassed before me, but I expect it will be possible for the wife to cash in one superannuation policy only. If she was to cash in the P policy valued at $189,000, on my calculations the tax would be in the order of $8100, but I am open to further submissions on that.
Counsel for the wife in this matter was also counsel for the wife in the matter of BAR v JMR, a decision of Young J to which I have previously made reference. That matter was taken on appeal, and the Full Court - Kay, Holden and Boland JJ - dismissed the appeal. In that case the husband was a highly paid senior public servant. Separation had been in 1997. The decision was delivered in 2005. The husband had made no contributions to the relevant scheme - the same scheme as in the current case - for the eight years prior to the trial judge's determination.
The effect of his Honour's orders was the wife was to receive a splittable payment in the payment phase and not in the growth phase. This aspect of the trial Judge's decision was not the subject of any challenge in the Full Court. Ms P was familiar with the BAR decision. She indicated on her understanding of the situation the super fund was having considerable difficulty in implementing the order made. In recording this observation of the witness, I intend no criticism of the decision of Young J. He set out in considerable detail why he elected to make the orders that he did.
I find the current facts are quite different from those in BAR. As I have noted, in BAR's case, no contribution had been made to the relevant policy for eight years. Here the husband had made contributions at the highest level, it would seem, for seven years since separation. The policy has increased in value, as valued under the regulations from $116,000 to the current value of $263,000.
Section 90MT(2) of the Family Law Act provides:
“Before making an order for a splittable payment, the court must determine the value of the interest in the following manner:
(a) if the regulations provide a method for determining the value of the interest, the court must determine the value in accordance with the regulations;
(b) otherwise the court must determine the value by such method as it considers appropriate.”
Section 90MT(2A) provides:
“The amount determined under subparagraph (2A) is taken to be the value of the interest.”
Section 90MT(3) provides:
“Regulations for the purposes of paragraph (2A) may provide for the amount to be determined wholly or partly by reference to methods or factors that are approved in writing by the minister for the purpose of the regulations.”
Regulation 29 describes the method for determining the gross value of a defined benefit interest, and this is the methodology adopted by Ms P.
Ms P’s evidence was that the husband would incur certain penalties in the event a splitting order was made effective in the payment phase. I propose to bring the husband's superannuation into account at its current value as calculated in accordance with the regulations, namely $263,000. I do so for the following reasons:
a)The regulations provide a mandatory form of calculation. It is a matter for federal parliament to alter the regulations if it is perceived injustice arises or anomalies arise from using the prescribed formula. Young J's decision was delivered in May 2005. There has been no amendment to the regulations and no suggestion of any amendments.
b)Ms P gave her explanation why the amount calculated pursuant to the regulations is significantly less than the amount given by the super fund as to the current retirement benefit. I accept her evidence in this regard.
c)The facts in BAR's case are quite different to those that present in this matter. There was a suggestion in Ms P’s evidence that to adopt the approach urged upon the court may create difficulties for the superannuation fund as to how the orders are to be implemented.
d)At the conclusion of the hearing I was informed, albeit in an out‑of‑court fashion, both counsel accepted procedural fairness had been afforded to the various superannuation funds involved. There is no evidence that the E Company has been advised as to the precise form of order the wife is seeking. Indeed the way the amendments have been made to the orders the wife seeks, I would regard it as highly unlikely that E Company has any knowledge that the wife is seeking an order for a split of the husband's superannuation in the payment phase.

Summary Of Assets And Liabilities Excluding The Superannuation Fund Interests

A property  $630,000
M property       $196,000
wife's motor vehicle  $    9,000
Y policy  $ 17,734
horse gear  $    6,590
plant and equipment, wife to retain $    9,000
Massey Ferguson tractor  $    1,800
Horses  $    6,000
husband's plant and equipment  $      250
cattle  $    1,400
husband's equitable interest
in R property   $ 34,000
total   $911,774
Less Viridian line of credit  $ 26,000
net assets  $879,774
For reasons I am about to give, I propose to divide the assets of the parties 65 per cent to the wife and 35 per cent to the husband.
The wife's entitlement at 65 per cent amounts to $571,853. The wife receives:
former matrimonial home  $630,000
motor vehicle  $    9,000
horse gear  $    6,590
horses and cattle  $    7,400
plant and equipment  $    9,000
total  $661,990
The amount payable by the wife to the husband by way of adjustment is:
$571,853 subtracted from $661,990 which leaves $90,137.
I have taken out of the assets the distribution of $21,362 to each of the parties from the sale of the shares. The wife's evidence at paragraph 66 was that after payment out of valuations and legal costs, effectively these shares have been expunged totally. The husband's evidence at paragraph 14 was that he used the sale proceeds of the shares to reduce the Viridian line of credit. The reality is the distribution has been made and the moneys have been dissipated. It is not appropriate to bring such amounts back in as a notional asset. There is also to my mind a risk of double counting if the distribution is added back in the absence of reliable evidence as to precisely how the moneys have been expended.

The Effect Of Orders Sought By The Wife

To accede to the wife's application, of the two properties the parties own, the wife would retain the one valued at $630,000 while the husband retains the property valued at $196,000. The wife then proposes that instead of paying the husband an adjustment in cash, she transfer to him her P policy. The husband would be unable to access the benefit of this policy until the date of his retirement which could not be before two and a half years, but more likely it would be in five years' time.
The wife has no cash assets. She has legal fees to pay. She says A property is in need of significant repairs. At paragraph 33 of her affidavit, she deposes:
“I have insufficient income to meet my current expenditure needs. I also have no significant capital reserves to pay current legal costs and the current valuation fees re [A] property.”
To allow the wife to retain A property, I propose to adjourn the date of payment to the husband to September 2007 at which time she may elect to cash in her P policy. It is a matter for her whether she wishes to keep working and attempt to borrow funds or to retire and obtain the benefit of her major super fund or to sell A property and obtain less valuable accommodation.

Treatment Of The Super Funds

The value of the husband's super fund as determined, $263,651; the value of the wife's three super funds, $235,658. The difference in value is $27,993. 50 per cent of this figure rounded off is $14,000. The wife contributed to her fund for seven years prior to cohabitation. The husband has contributed to his fund for seven years since separation. I appreciate the situations are slightly different. When the wife was contributing to her fund, there was no indirect contribution by the husband. There has been an indirect contribution by the wife since separation, in that she has had the care of the children and has maintained the A property.
The view that I have reached is it is just and equitable that each party retain their current entitlements. It unnecessarily complicates the matter to be making splitting orders. It is simple and more expedient if the husband makes a cash adjustment at this point in time to balance the differential in the value of the policies. I have taken into account that the wife may cash her policies this year, while the husband is unable to access his funds for several years.
I find it just and equitable to adjust the super fund equally rather than 65:35 applicable to the other property. The parties' contributions to the others' respective policies can only be described even in an indirect fashion as minimal. I note that each party is liable to pay tax on their respective policies if they cash them in prior to age 60.
The cash adjustment for the wife to pay the husband as previously determined, $90,137, less adjustment for difference in valuation of super funds, $14,000. The amount the wife is required to pay husband is $76,137. This is the amount that is to be deferred until September this year. After that, if it is not paid, there will be orders that interest accumulate. If it is not paid within three months thereafter, there will be an order for the sale of the property.

Reasons For The Adjustment On The Basis Of 65:35

Of all the various factors to be taken into account in examining the lives of the parties or the period of the relationship of the parties, it is not possible to consider one factor - say, the husband's long service leave entitlement - as a financial resource and allow the wife an additional 5 per cent for this, but then to deduct from her entitlement a different percentage because she has had rent‑free use of the former matrimonial home for the past seven years since separation. It is preferable to list the various relevant factors and simply make an adjustment on account of section 79 factors, and then to determine whether any further adjustment on account of section 75(2) factors is appropriate.
I take into account the written submissions and the oral submissions in this matter that have been made as to the various 79 factors. The more significant factors under section 79 include the fact that the wife has had the use of the former matrimonial home for seven years. The husband has had to pay rental and has contributed to the mortgage on the family home. The wife's home is a four-bedroom home. I expect it would rent conservatively in the range $200 to $300 a week. There is no point in making calculations beyond this. The wife has had to pay the rates, insurance and upkeep on the property.
I still find she has had a significant benefit from her occupation of the property. On the other hand, the wife has had the cost of raising the children. This has impacted on her ability to earn income. The husband has paid child support at an appropriate rate and has contributed to school fees, but there are many hidden costs and the wife has had to meet those costs in the period since separation.
I take into account the fact the wife's initial contributions were greater than the husband. The amounts involved at that time were significant by the value of the dollar in those days. The wife has contributed an inheritance of $21,000 at an early stage of the relationship, and that enabled the parties to acquire their first real estate. The husband wasted assets in not renting M property for the past nine months. The husband has the financial resource of his long service leave entitlements. I take into account the husband has worked to the best of his ability throughout the entire period of the relationship. The wife has worked and has had the care of the children.
On account of section 79 factors, I regard a distribution of 60 per cent to the wife and 40 per cent to the husband as just and equitable.
A further 5 per cent on account of section 75(2) factors is called for. The husband is in secure employment. His income is in the range $60,000 to $65,000. The wife still has the care of the children for a few more years. Her employment prospects are modest, as I have previously detailed in these reasons. If she elects to access her superannuation entitlement, her employment prospects are even more limited.
The question crossed my mind - if the wife retires from permanent employment at age 55, can she engage in a subdivision of the property without breaching the prohibition on returning to employment? That is not an issue I have to decide. I have refrained from making findings on the credit of the parties. I found them both to be basically honest, decent citizens, but each was found wanting in certain areas at certain times. There is no need for me to canvass those aspects.
For the reasons given orders will issue in the following terms.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date:

ADDENDUM TO JUDGMENT

HYDE/HYDE DGF 447/2004

On 14 February 2007 the Reasons for Judgment were read into the record in the Family Court, Melbourne. In the course of delivering those Reasons I indicated I would hear further submissions from Counsel in relation to certain issues before the Orders would issue.

Only one issue was raised and that was whether an allowance should be made for capital gains tax payable on the husband’s equitable interest in the R property.

On the calculations I had made the husband made a capital gain of $54,000 on his notional share of this property.

I made an allowance of capital gains tax of $18,000 and a further allowance of $2,000 being his half share of any selling costs.

Upon reflection the allowance for these expenses on sale were too high and should more properly have been reduced to $12,500.

I would estimate the real estate agent’s commission at $5,000 and the husband’s 50% share of this at $2,500. Capital gains tax would be the additional tax payable on $27,000.

I would estimate the husband’s tax on this amount would be in the order of $10,000.

Accordingly I propose to substitute the figure of $12,500 in lieu of the figure of $20,000.

The effect of this is to bring the R property into account at $41,500, in lieu of the previous figure given of $34,000.

I will allow either party ten (10) days to make submissions in writing challenging the accuracy of the new calculations. If no submissions are received the Orders will issue as amended.

I turn to consider the issue as to whether any allowance should have been made for selling costs.

Counsel for the wife submitted no deduction should be made for capital gains tax and related selling costs based on the principles enunciated in the well known decision, In the Marriage of Rosati 1998 23 FLC page 288 a decision of the Full Court (Ellis, Lindenmeyer and Kay JJ).

Counsel for the wife submitted there was no evidence Ms J intended to sell the R property.

It was abundantly clear Ms J was not going to be a witness in the case. The husband denied he had any equitable interest in the property. For reasons given I found he did have an equitable interest but not in the proportions claimed. Neither Counsel sought to canvass this aspect of the matter.

There was evidence Ms J had recently sold a property at H and there is evidence that she had bought and sold properties with reasonable regularity. A property had been purchased in her name at K. During the course of evidence in chief of the husband his Counsel endeavoured to elicit information about the status of the R property. Counsel for the wife objected on the basis the relevant information was in the wife’s affidavit.

When Counsel for the wife sought to ask further questions I indicated I would withdraw permission to adduce additional evidence.

It is possible that the witness may have canvassed this aspect had I not taken the approach I did.

All cases to which I have had reference relate to a situation where a litigant had a legal interest in the title of the property.

I do not propose to accede to the submissions made by Counsel for the wife to disregard any deduction at all for selling costs.

I take into account the following aspects:

The husband’s interest in the property is a “notional” asset. If there was to be a falling out with Ms J this may involve significant legal costs to the husband in establishing a claim if she elects to dispute same. I accept the force of the submission in these terms made by Counsel for the husband. I note that I have made no allowance for this aspect but it is an associated risk factor.

The wife made no contribution to this significant post-separation capital gain other than in an indirect manner as a joint owner of the property which was used as security for the loan.

I bear in mind the wife had placed a caveat on the M property and had the husband sought her permission to advance $40,000 to his partner in all probability such consent would not have been forthcoming. To that extent the equitable interest in R property is something of a “windfall” so far as the wife is concerned.

Most importantly I am of the view it is likely that in the future the R property will be sold. It would be in keeping with Ms J’s pattern of buying and selling properties with regularity but it would also reflect the fact that there is a large mortgage which would be difficult to service on the property they have recently acquired as their home.

For the above reasons I do not propose to accede to the submissions for the wife that capital gains tax allowances should be disregarded.

However for the reasons given I propose to substitute the figure of $41,500 in the lieu of the figure of $34,000 in the valuation of the husband’s equitable interest in R property.

When editing the reasons for judgment I noted that I had made a miscalculation at paragraph 76. I had correctly totalled the assets at $911,774 but in deducting the Viridian Line of Credit at $26,000 gave a net figure of $879,774.

I propose to redo the calculations. The calculations I make are as follows:

A property  $630,000
           M Property  $196,000
           Plus motor vehicle  $    9,000
           Y policies  $ 17,734
           Horse gear  $    6,590
Plant and equipment (W)  $    9,000
Massey Ferguson tractor (H)  $    1,800
           Horses (W)  $    6,000
           Husband’s plant and equipment  $      250
           Cattle  $    1,400
           Husband’s equitable interest in R property            $ 41,500
           TOTAL value of assets  $919,274
           LESS Viridian Line of Credit  $ 26,000
           VALUE of net assets  $893,274

Wife’s entitlement at 65%  $580,628
           Wife is to receive  $661,990
           Amount payable by Wife to Husband  $ 81,362
           LESS adjustment on account of
super balance adjustments      $ 14,000
ADJUSTED amount payable by Wife to Husband $ 67,362

For the reasons given orders will issue in the following terms:

(1)Upon receipt of the sum set out in paragraph 6 of these orders the husband transfer to the wife all of his interest in the property “[A property”, B.

(2)The wife is to indemnify the husband for any liabilities attaching to the property.

(3)Within twenty-eight (28) days the wife withdraw the caveat over the property at M

(4)Simultaneously with the transfer of “A property” the wife is to transfer to the husband all of her interest in M property, B.

(5)The husband is to indemnify the wife for any liabilities attaching to the property.

(6)By no later than 30 September 2007 the wife is to pay to the husband the sum of $67,362 free of interest to that date.

(7)If the amount specified in paragraph 6 is not paid by 30 September 2007 interest is thereafter payable in accordance with the rate prescribed by the Family Court Rules.

(8)In the event the sum referred to in paragraph 6 together with interest in accordance with paragraph 7 has not been paid by the wife by the 31 December 2007 then the property at “A property” is to be forthwith sold.

(9)In the event “A property” is to be sold in accordance with the terms of paragraph 8 hereof the husband is appointed trustee with power of sale.

(10)As trustee with power of sale the husband is authorised to appoint a real estate agent and solicitors to act on the sale and to determine in his sole discretion whether the property is to be sold by private treaty, auction or otherwise.

(11) Sale proceeds from the sale of “A property” are to be disbursed as follows:

a.in payment of the costs of sale including advertising and marketing of the property for sale and any real estate agent’s commission and legal costs;
b.in payment of any outstanding rates, levies or other charges attaching to the property;

c. in discharge of any mortgage debt or other encumbrance of the property;
d.in payment of the sum of $67,362 together with any interest accumulated as provided for by these orders;
e.the balance to be paid to the wife.

(12)Each party retains all other chattels currently in their possession save that the wife deliver to the husband within twenty-eight (28) days the early Australian sideboard, his firearms (4), his tools, the Massey Ferguson tractor and a selection of the family photographs.

(13)Each party is to retain the superannuation benefits and insurance policies currently held in their names.

(14)The capital gains tax payable on the sale of shares be paid from moneys held in the wife’s Solicitor’s Trust Account. Presentation of a Notice of Assessment from the Australian Taxation Office evidencing the liability for such tax by a party shall be sufficient authority for the sum to be paid to that party. In the alternative a letter from a certified tax agent detailing the amount of capital gains tax arising from the sale of shares shall be sufficient proof for the wife’s Solicitor to release the payment to that party.

(15)The balance of any funds remaining after payment of capital gains tax shall be distributed 65% to the wife and 35% to the husband.

(16)The solicitor for the wife is to provide the parties with a detailed accounting of the disbursal of moneys currently retained in the Trust Account.

(17)The parties do all acts and things and execute any documents reasonably necessary to give effect to these orders and should either party fail to execute any documents within seven (7) days of their being so requested a Registrar of the Court at Melbourne is hereby appointed and authorised to sign such documents on behalf of such party.

(18)Either party have liberty to apply on seven (7) days written notice to the other.

(19)It is certified that it was reasonable this matter is one proper for the attendance of Counsel.

I certify that the preceding paragraphs twenty-five (25) paragraphs are a true copy of the addendum to the reasons for judgment of the Honourable Justice Barry

Associate:

Date:

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HYDE & HYDE

[2007] FamCA 515

14 February 2007

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