JAB and ELB - [2003] FMCAfam 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAB & ELB

[2003] FMCAfam 388

FAMILY LAW – Property – short marriage – initial contributions – husband makes continuing financial contribution – wife contributes primarily as a home maker – contributions must be evaluated in a total sense – wife defrauds Centrelink – Centrelink debt a joint matrimonial liability.

Family Law Act 1975

Pearce v Pearce (1999) FLC 92-844

Querasimu (1999) Fam CA 1314

Kennon v Kennon (1997) FLC 92-757

Applicant:

J A B

Respondent:

E L B

File No:

SYM192 of 2003

Delivered on:

29 July 2003

Delivered at:

Wollongong

Hearing date:

28 July 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr D. Alexander

Solicitors for the Applicant:

A R Yates & Co

Counsel for the Respondent:

Mr Dalley

Solicitors for the Respondent:

B E Hudspeth & Co

ORDERS

Within two months from the date of these orders the husband pay to the wife the sum of $33,099 and Centrelink the sum of $15,890.
Upon payment by the husband, the wife shall do such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, the whole of her right, title and interest in the real property situate and known as the Flinders property.
Contemporaneously with the payment of moneys referred to in order 1 hereof, both parties shall do all acts and things and sign all such documents as may be required to discharge the mortgage to the City Coast Credit Union secured over the former matrimonial home and thereafter the husband shall be solely responsible for payment of the balance.
Pending discharge of the mortgage referred to in Order 2 herein the husband shall be responsible to make all payments of moneys due under that mortgage shall indemnify and keep indemnified the wife in respect of any such liabilities.
That in default of either payments pursuant to Clause 1 hereof, on or before the date the parties do all things and execute all deeds, documents, instruments and writings necessary to forthwith sell the former matrimonial home by private treaty at a price agreed between the parties or failing such agreement at a price equivalent to the meant of two valuations by registered valuers being members of the Australian Institute of Values, one obtained by and at the expense of the husband and one obtained by and at the expense of the wife. Such valuations to be made not more than two weeks apart from each other, and give such instructions to the solicitor for the husband for the preparation of an appropriate contract and other documents as are necessary for the sale of the former matrimonial home by private treaty.
In the event that the matrimonial home is not sold by private treaty within six (6) months from the date of this order the parties within seven (7) months from the date of this order do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the sale of the matrimonial home by public auction and in particular:
(a)Place the matrimonial home with an auctioneer agent nominated by the wife (“the auctioneers”) for the sale of the matrimonial home by public auction at the earliest possible date.
(b)Execute all documents requested by the auctioneers for the sale of the matrimonial home by auction.
(c)Request the auctioneers to recommend a reserve price to be placed on the matrimonial home for the purpose of the auction sale and accept such recommended reserve price.
(d)Pay to the auctioneers any sums requested for advertising expenses in relation to the auction.
(e)Gives such instructions to the solicitor for the husband for the preparation of any appropriate contract and other documents as are necessary for the sale of the matrimonial home by auction.
(f)Cooperate in every way with the auctioneers in relation to the auction of the matrimonial home including making a key available, allowing inspection of the matrimonial home at times requested by the auctioneers and ensuring that the matrimonial home is in a neat and clean condition at the time of inspection by prospective purchasers.
(g)Attend at the auction sale of the matrimonial home and negotiate with the highest bidder in the event that the reserve price is not reached.
(h)Accept the advice of the auctioneers as to the acceptance of a price less than the reserve price.
(i)Execute the contract of sale.
(j)Execute all other documents necessary to complete the sale of the matrimonial home.
The parties do all acts and things necessary to procure that upon the sale of the matrimonial home the proceeds of sale be paid in the following manner and priority:
(a)In payment of agents commission and auction expenses if any due on the sale.
(b)In payment of legal costs of sale including solicitors acting for each of the parties in respect of the contract for sale.
(c)In payment to the City Coast Credit Union of all monies dues and payable in respect of the mortgage.
(d)In payment of all council, water rates and other outgoings on the property.
(e)In payment to the wife of an amount equal to $33,099.
(f)The balance to be paid to the husband providing that should there be any arrears of monies due in respect of the mortgage and/or unpaid council, water rates and other outgoings on the property then payment of those outstanding amounts is to be firstly paid.
(g)In payment to Centrelink of the sum of $15,890.
The wife forthwith transfer to the husband the whole of her right, title and interest in the Sanyong Musso motor vehicle and the caravan and that the husband indemnify the wife in relation to any liabilities attached to those items.
That unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)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.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM192 of 2003

J A B

Applicant

And

E L B

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The Application

This is an application by J A B (“the wife”) for s.79 orders to adjust the parties' financial interests. During submissions the wife’s counsel indicated that she proposes that she have 35 per cent of the net available assets.
The principal asset is the former matrimonial home, “the Flinders Property”. As the husband owned this property prior to cohabitation and still lives there, the wife agrees that he should have the opportunity to acquire her interest in the matrimonial assets by payment to her of a sum of money. If he does not do so only then does she ask that the home be sold.
E L B (“the husband”) wants the opportunity to acquire the wife’s interest in the matrimonial assets and would like to keep the home. He says that the wife overstates her s.79 entitlement and submits that she should have between 10 and 15 per cent of the net assets. The differential is how the court treats a debt in her name to Centrelink.

Background facts

The husband was born in 1940 in Tripoli. He is 62 years old. He migrated to Australia when he was 20 years old and has lived here ever since.
The wife was born in 1946 and is 56 years old.
The parties met in the early 1960s. They dated for a few years and then went their separate ways. Both married their first of three spouses in 1965. The wife married G H and has five children by him. They range in ages from 37 to 24. Only her eldest daughter lives in New South Wales.
The husband's marriage to his first wife ended in 1973.

They did not have any children. In 1974 he married his second wife. They have three children who range in ages from 27 to 22. They divorced in about 1996. One child lives overseas while his other two children live nearby. They are in regular contact.
The wife divorced her first husband in about 1992. She met her second husband when both were patients at a private hospital. Her husband was hospitalised because of alcohol problems and the wife was having in-patient treatment for depression. They lived together for about two years prior to their marriage.
The wife was still living with her second husband, albeit unhappily, when the husband contacted her in late 1996. He had run into the wife's sister and through her the parties resumed their friendship. The husband travelled to Queensland to visit the wife on 1 November 1996. Their reunion went well and they agreed to live together. On his return to Wollongong the husband sent the wife $500 for her airfare and an airfare for the wife’s adult daughter. He loaned her $1000 so that her husband could repay some outstanding debts.
On 9 November 1996 the wife arrived in New South Wales with her adult daughter. Because he was working at Newcastle the husband met her in Sydney, took her to the Flinders property and then returned to Newcastle. He gave her a jar of coins as start up money pending his return. He says that he gave her $700. An amount that in my opinion seems somewhat exaggerated.
At the commencement of cohabitation the wife had a few assets. She had her own clothes, a few household goods and $800 in Australian Rollover Fund. That $800 was drawn down during a period when the parties were separated in early 2002.
Not long after she arrived her second husband paid her $4000. This represented her half share in their matrimonial assets and repayment of the moneys loaned by the husband. In total, therefore, at the commencement of cohabitation she had about $3800 in assets as well as her personal goods.
The wife had last worked in 1993. She had previously found that she would not cope with full-time work without compromising her mental health. The wife gave up her part-time job as a saleswoman when her adult daughter came to live with her in 1993. Her daughter was psychologically very unwell and the wife felt she needed to be at home with her daughter.
Not long before they started to live together, the husband completed a property settlement with his second wife. The parties agree on the identity of his assets, but disagree about their value. I am satisfied that he made the following initial contribution:
·A villa unit known as the Flinders property. He had settled its purchase in August 1996. He paid $116,000 for it, $90,000 of which was borrowed from Super Members Home Loan.
·A Subaru Liberty 1991 model for which he paid between $23,000 and $25,000 about two years earlier.
·$1000 owed by the wife’s second husband,
·$8000 in a Commonwealth Savings Bank account,
·Superannuation valued at about $16,964, and.
·A modest collection of furniture located in his villa unit.
The wife had no idea what the husband's savings were, but challenges his evidence nonetheless. Because he traded the Subaru in for a Musso two years later and received $13,000 as a trade in she says that the court would not accept his evidence of its worth at the commencement of cohabitation. I am satisfied that I should accept his value of the car and the savings he asserts. The husband lives frugally and does not waste money. Unless he had sufficient savings to provide a buffer against unforeseen financial circumstances it would have been most unlikely that he would:
·Have loaned money to the wife’s second husband.
·Travelled to the Gold Coast to see the wife.
·Paid for the wife and her daughter to come to Sydney.
Thus, at the commencement of cohabitation the husband had the assets identified already in these reasons and the mortgage debt.
The husband has worked hard throughout his life. At cohabitation he was employed as a crane driver. He started that job in about 1994. Other than during his hospitalisation and recuperation in 2000 the husband worked full-time throughout the marriage. He contributed all of the moneys earned during the marriage to joint matrimonial purposes.
The wife worked for between 12 and 18 months towards the end of the marriage selling Avon products. She earned about $60 per month from this venture. She also had the money fraudulently taken from Centrelink, which moneys were contributed to joint matrimonial purposes. As those moneys are to be repaid I am satisfied that I should, as the wife's counsel submits, not credit her with making a contribution and simply deal with that aspect of the parties' financial expenses by ensuring the repayment of the debt.
The wife's counsel submitted that where the parties' accounts of events differed the court would prefer the wife's evidence. In some instances I do. However, I am also satisfied that the husband's testimony was also truthful in many respects. I am not satisfied that global adverse credit findings are appropriate.
A few weeks after the parties started to live together the husband told the wife that he could not afford to give her regular additional spending money. He committed to pay all of the household outgoings, but resisted her requests for personal funds. The wife then made an application for a widow's pension based upon her separation from her second husband. I do not accept her claim that the husband suggested that she do so or that he approved at any stage that she was claiming a Centrelink benefit to which she had no entitlement. She claimed the benefit between 27 November 1996 and 16 September 1998. At no time was she entitled to it. The wife stopped claiming the pension after an anonymous complaint was made to the Department of Social Security. Some of the Department of Social Security funds were spent on household expenses, some on wedding expenses and the balance on the wife's personal expenses. None of those moneys contributed to the regular household outgoing such as utilities, groceries, mortgage, rates and the like. Those payments were made exclusively by the husband.
About 15 months prior to their marriage the husband assaulted the wife when he grabbed her around the throat. The wife's sister was present and intervened. The next day the wife left the home and went to her sister. She reported the incident to local police and the husband was charged with assault. She removed her personal belongings and the various items she had bought for the house and put them into storage. About one week later the husband asked her to return to him, which she did. The police did not proceed with the prosecution.
The parties married on 18 July 1998. The wife bought the wedding ring, paid for her dress, her adult daughter’s outfit and the flowers. She used her pension savings to do so.
Two years after they started to live together the husband traded in his Subaru for a Musso. He borrowed $21,000 from St George, which supplemented the $13,000 trade in. He paid all loan repayments.
In July 2000 the husband was diagnosed with hairy cell leukaemia. He was admitted to hospital under the care of Dr W on 3 July 2000. After chemotherapy he was discharged home on 10 August 2000 with his leukaemia in remission. His health gradually improved and he returned to work in September 2000 working part-time. Subsequently he returned to full-time work.
While he was in hospital the mortgagee and St George Bank wrote advising that as loan repayments had been missed they were considering calling on the assets. The husband told the wife that everything would be fine and he contacted his union so that they could make arrangements for the loan repayments. As he was only in hospital for a few weeks the strategy was likely to be effective. I do not accept the wife's evidence that she saved their home and car when she arranged to refinance the loan. In my opinion, the wife panicked and took a series of unnecessary steps. The wife insisted that the husband give her a power of attorney, which he did. She then instructed solicitors to act on her behalf, refinancing the home loan and the car loan.
Opportunistically, in my opinion, she made these arrangements predicated upon a transfer of ownership of the villa into joint names. This was a big issue with her and in my opinion had nothing to do with the refinance. The husband simply says he was too sick to argue with her and reluctantly went along with her demand to re-finance and to transfer the home into joint names. I accept his evidence. Thus any costs associated with these transactions, legal fees, valuation and stamp duty were unnecessary expenses.
While the husband was ill the wife did virtually all of the housework as well as taking care of him. Once again her health deteriorated and her treating psychiatrist, Dr A, changed her medication in a vain attempt to halt serious depression.
In about November 2000 the husband assaulted her when he kneed her in the back. The wife called the police and he was removed from the home. The wife was admitted to hospital overnight. She had some bruising to her back. In March 2001 the husband was convicted of the assault.
The wife remained in the home and the husband stayed away from it for a couple of months. It was during this time that the wife cashed in her superannuation. During the separation the husband stayed with his adult daughter. He says that while he was living with his daughter she loaned him about $5000. His evidence is corroborated by his daughter. I do not accept their evidence on this transaction. I agree with Mr Alexander's analysis of the circumstances. He submitted that the transactions all took place by cash, that they were wrongly described by the husband’s adult daughter in a note later written to ostensibly record the transaction and the unsatisfactory manner in which both witnesses gave evidence on this issue undermined their testimony. In my opinion, the transaction was nothing more than a ruse to mask the real effect of a later withdrawal of funds made by the husband after separation. He pretended to repay his daughter when there was no debt to repay.
In August 2002 the parties took a driving holiday to Cape York. On their return the wife suffered a relapse in her mental health and once again Dr A changed her medication.
The parties separated on 6 November 2002 and continued to live separately in the villa unit. Apparently the husband continued to support the wife financially until she left the home on 13 March 2003. The husband remains in the home while the wife has now moved into rented accommodation. Since separation she has become eligible to receive a disability pension. Her disability relates to her mental health and her doctor's opinion that she will never again return to the paid workforce.

Relevant law

The approach to the determination of an application under section 79 is well established by authority In the Marriage of Lee Steere and Lee Steere[1]; In the Marriage of Ferraro[2] and In the Marriage of Clauson[3] the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Family Law Act 1975 affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[1] (1985) FLC 91-626
[2] (1993) FLC 92-335
[3] (1995) FLC 92-595

In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[4].
[4] (1999) FLC 92-877
During submissions the wife’s counsel referred me to Pearce v Pearce (1999) FLC 92-84. I agree with him that the principles established in Pearce are clearly applicable to this case. There the Full Court said this:
In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached in all the circumstances to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.
In considering the weight to be attached to the initial contribution - in this case the husband - regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
And further on:
There is an obligation on a trial judge not only to identify the relevant contribution, but also to assess them.
This point was taken up more recently by the Full Court in Querasimu (1999) Fam CA 1314 where the Full Court said this:
There is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with the particular contribution. It is a matter of assessing all of the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular contributions may be outweighed by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.

Assets and liabilities as at the date of hearing

I turn now to the first of the tasks that I must consider, which is to make findings in relation to the assets, liabilities and financial resources as at the date of the hearing. The parties agreed on the value of the assets as at the date of the hearing and their identity.

Assets as at the date of hearing	$
The Flinders Property – agreed	235,000
Motor vehicle (h) – agreed	15,500
Caravan (h)	1,200
Furniture at matrimonial home (h)	4,230
Superannuation (h)	42,000
City Coast Credit Union (h)	1,200
Commonwealth Bank (h)	70
TOTAL ASSETS	299,250
Liabilities as at the date of hearing
Mortgage (h)	87,270
Centrelink debt (w)	500
Centrelink debt (w)	15,890
M H (w)	390
Network Consumer Finance Pty Limited (h)	50
Total liabilities	104,500
NETT ASSETS	194,750

The two issues that I needed to determine in relation to the assets and liabilities related to the treatment of two transactions – the loan of $5000 that was ostensibly made by his daughter and the wife’s Centrelink debt. I have already made findings that I am not satisfied that the adult daughter loaned her father $5000, hence the payment by him to her of $5000 was not the repayment of a loan. I am not asked to notionally add those moneys back into the matrimonial assets. In those circumstances I will deal with the issue under s.75(2)(o).
The debt to Centrelink I am satisfied, although in the wife's name, is a joint matrimonial debt. The husband did not initiate the wife's fraud and was not a moving party thereafter in relation to it. However, it was clear that the wife was bringing money into the home that had no other possible source. She did not work and was not receiving periodic payments from any other place. I am satisfied that the husband was aware that the wife had embarked on this strategy of defrauding social security and while he did not agree to, it he did nothing to stop it. He accommodated the use of a portion of those funds on joint matrimonial purposes. I am satisfied that it is a matrimonial debt that must be repaid jointly.
I accept the husband's evidence that when the parties resumed cohabitation after their separation at the end of 2001 that once he was aware that the wife was again receiving social security benefits he insisted that she give it up. She did and none of the debt is attributable to her receiving a benefit after the husband had insisted that she relinquish the entitlement.

Contributions and other factors

The nature of the financial arrangements between the parties was that the husband paid the mortgage, the car loan and the outgoings on the home - the utilities and the groceries. After the parties married the husband gave the wife between $50 and $100 per week for her own expenses, albeit at times somewhat reluctantly.
The fact that the husband was the major financial contributor during the marriage does not make him the sole contributor to those assets. Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Those contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
The husband's contributions financially outweighed the wife's financial contributions enormously. She made a small initial financial contribution and otherwise contributed the money from her Avon income. The husband contributed all of the assets he brought into the marriage and but for the $5000 paid to his daughter all of the income earned by him throughout the course of cohabitation to joint matrimonial purposes.
The wife's contributions were primarily as a homemaker. She fastidiously maintained the interior of the villa and attended to the family's day-to-day housekeeping. When the husband's children visited she ensured that the villa was kept clean and tidy when they were there and after they had gone. Because the husband liked to cook he did the cooking and both parties did the grocery shopping. While important, his non-financial contributions are not as significant as the wife's were. Neither party suggests that they made any improvements to their property other than the wife maintaining the interior of the property to the property.
The wife claims a special contribution because of the two incidents of domestic violence to which I have made reference and her care of the husband while he was ill. Thirdly, she says because of his demeaning attitude towards her. She relies on the principle in Kennon v Kennon (1997) FLC 92-757 in making this claim. Fogarty and Lindenmayer JJ described this type of contribution thus:
Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contribution to the marriage this is a factor which a trial Judge is entitled to take into account in assessing a party's respective contribution under s 79.
I do not accept that the husband engaged in a course of violent conduct towards the wife. I have accepted the wife's accounts of the two incidents to which I have already made reference in this judgment. In my opinion she does not establish a course of conduct. Certainly she regarded the husband's approach to her at time as demeaning, both in terms of his frugal approach to money and his reference to her at different times as being "mad". His language was blunt and unfortunate. The wife does suffer from a mental illness, describing her as "mad" probably contributed in a meaningful way to the failure of this marriage.
However, I am not satisfied that the husband's regrettable language made her contribution to the marriage a special contribution in the sense referred to in the cases. I am not satisfied it meant that she made that contribution which she did make under significantly onerous circumstances. Her claim for special contribution fails.
The orders I make will not have an impact upon the earning capacity of either party.
There are no child support issues that must be taken into account.
Cohabitation continued over a reasonably short period and in those circumstances the husband's initial contribution must be given significant weight. His initial contribution was pivotal to the financial security of this family. Had it not occurred I am satisfied that the parties would never have been able to acquire a home. His ownership of the Flinders property, his interest in his superannuation fund, the fact that he owned the Subaru and had the savings to which I have already made reference provided the backbone for the financial security that these parties had. Throughout the course of the marriage he supported the borrowings that enabled the parties to have their home and his financial contribution was overwhelming. Both the initial contribution and his financial contribution throughout the course of the marriage are fundamental and I give them very significant weight.
The court must consider and value a party's contribution as a homemaker in a real way. I do. The wife's initial contribution and her greater contribution as a homemaker throughout the course of the marriage are reflected in my finding that I should assess her contributions at 15 per cent. It is the significance of the husband's initial and greater financial contribution throughout the course of the marriage and the use that the parties put to that contribution to which leads me to conclude that his contribution should be assessed at 85 per cent.

Section 75(2) factors

Both counsel agree that the range of adjustment pursuant to s.75(2) in favour of the wife should be between zero and no greater than two per cent.
I have already made findings about the parties’ ages and about aspects of the husband's health. His treating doctor, who reviews him each six months, says that his leukaemia is in remission and that he is otherwise in reasonable health. She says:
The average remission duration for hairy cell leukaemia is greater than six years. His blood tests have been within the normal range for some time now and I am pleased with his progress.
She also identifies that he has persistently abnormal liver function tests and that he has been diagnosed with granulomatous hepatitis.
The wife physically is in reasonable health, but she suffers a major psychiatric disorder. She has throughout most of her adult life suffered from chronic depression, which has resulted in her repeated admission to hospital and decades of medication. Prior to her commencement of cohabitation with the husband she had been hospitalised on at least six occasions because of her mental illness. Currently the wife takes a complex array of medication, including Avenza, Valium, Rivotral and Sinequan. These are sleeping tablets, mood stabilisers and some form of medication to assist her with anti-anxiety. Dr A reports:
In view of the above factors she is unfit to work and will be so indefinitely.
I accept that the wife's mental health compromises her capacity for future paid employment and it is highly unlikely that she will ever return to the paid workforce. It is also probable, if not certain, that she will require continuing medication throughout the rest of her life.
I have already made findings about the parties' property and their financial resources. Both parties completed financial statements, which set out their income and their expenses. That evidence was not subject to any challenge and I accept their evidence. Thus I am satisfied that the husband has a gross income of $799 per week and that he has the fixed expenses, set out in his financial statement. He does not live on borrowings and in those circumstances where he has identified daily living expenses as exceeding his total income, he exaggerates his average weekly expenses. I am satisfied that he has a lifelong commitment to living within his means and that he generally eschews credit. In those circumstances his expenses do not exceed his income.
The wife has a disability pension of $269 per week. Her expenses are primarily rent and daily living expenses. The husband's income thus exceeds the wife's by about $530 per week. His expenses, because they include the car, the house and other borrowings, exceed the wife's.
His health and age mean that it is likely that he has only a short time left in the paid workforce. He will try to work as long as physically possible, but the reality seems to me that it is unlikely that he will work for more than another two or three years.
Neither party has a responsibility to support any other person.
I have taken into account the husband's interest in superannuation during the s.79(4) exercise. He will have the capacity to continue to grow his superannuation during the remainder of his working life. It is unlikely that he will be able to make significant additional contributions to his superannuation.
The husband has maintained the standard of living that he had during the parties' cohabitation. The wife has a standard of living, it seems, some what akin to that which she had prior to the commencement of cohabitation. She has suffered a diminution in her standard of living and her circumstances are parlous indeed. The issue though is whether she has a standard of living that in all of the circumstances is reasonable. I am satisfied that I should take into account in her favour that she does live in parlous circumstances, but because the circumstances are akin to those which she lived in as recently as 1996 I am satisfied that the adjustment should not be as great as the thrust of the submission made on her behalf.
I have made findings which mean that the contribution phase has resulted in an adjustment, 85 per cent to the husband and 15 per cent to the wife. Thus he will have the capacity to retain ownership of the assets of value whereas the wife will have only a modest sum with which she will need to repay her personal debts and try and establish in effect a nest egg for her future living expenses.
The husband had $5000, which he has given to his daughter, not in the repayment of a loan, but rather an attempt to put the moneys beyond the reach of the proceedings.
I am satisfied when I take into account the cumulative effect of the findings that I have made under s 75(2) that there should be an adjustment of two per cent in favour of the wife.

Section 79(2) is this outcome just and equitable

That the outcome of the proceedings has resulted in an outcome 83 per cent to the husband and 17 per cent to the wife I am satisfied it is just and equitable in the circumstances of this case. It would be under-estimating the primary importance of the husband's initial contribution and his continuing financial contribution that he made throughout the course of the marriage to come to any other conclusion. The wife's contributions, essentially those as a homemaker made over the comparatively short period of the parties' cohabitation, do not have the same significance. I take into account included in the husband's assets is his superannuation, that is an asset that he cannot immediately access. However, the probability is that he will be able to access it in a fairly short space of time. In those circumstances further adjustment is not warranted
The wife will not return to the paid workforce and the husband will remain in it for only a comparatively short period. The husband's overall contribution vastly exceeds the contribution made by the wife and I am satisfied that in the sad circumstances of this case 83 per cent to the husband as compared to a 17 per cent adjustment to the wife is a just and equitable outcome by reference to s.79(2).

Giving effect to these orders

Now, gentlemen, I am actually going to ask you both to draft the orders that will give effect to the findings that I made. The orders I make will provide that the husband will repay the wife the moneys that she is entitled to have within two months. If he does not do so then at the expiration of two months the home must be sold.
The parties will need to ensure that when drafting the orders that give effect to these findings the debt to Centrelink must be paid. In my opinion, that can be achieved one of two ways. The moneys can be paid directly by the husband to Centrelink or they can be paid to the wife's solicitor upon condition that the moneys are paid by her solicitor directly to Centrelink. Having engaged in such a substantial fraud for a period of nearly two years the Court must ensure that the debt to Centrelink is paid. The only way that can be achieved is if the wife does not get her hands on the money.
Thus the husband will have the home, his car, caravan, the contents of the home, his superannuation, his credit union account and his Commonwealth Bank account. He takes the home subject to the mortgage. The wife is personally liable for the other debts that I have identified. I have treated all of those debts as joint matrimonial debts and subject only to the larger Centrelink debt the wife will be responsible for repaying those amounts from the money she receives. This outcome, I am satisfied, is just and equitable.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 19 September 2003