Jenner and Desmond and Anor

[2016] FamCA 1028

FAMILY COURT OF AUSTRALIA

JENNER & DESMOND AND ANOR [2016] FamCA 1028

FAMILY LAW – PROPERTY – Defacto Property – Application by de facto wife for a property settlement – Contributions – Superannuation – Orders made in circumstances where Court satisfied it is just and equitable to do so where de facto wife receives 40 per cent and de facto husband receives 60 per cent

Family Law Act 1975 (Cth)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT: Ms Jenner

FIRST RESPONDENT:	Mr Desmond
SECOND RESPONDENT: Mr Desmond	Ms Desmond
FILE NUMBER:	LNC	657	of		2014

DATE DELIVERED: 1 December 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Welch

SOLICITOR FOR THE APPLICANT: Philip Welch

COUNSEL FOR THE 1^ST RESPONDENT: In person

SOLICITOR FOR THE 1^ST RESPONDENT:

COUNSEL FOR THE 2^ND RESPONDENT: In person

SOLICITOR FOR THE 2^ND RESPONDENT:

Orders

1. By way of property settlement, Mr Desmond (‘the first respondent’) pay to Ms Jenner (‘the applicant’);

   a.the whole amount contained in their joint B&E Limited iCash Management No. … account (about $165,000) within seven (7) days from the date of this order and that account be otherwise closed;

   b.the whole amount contained in their joint B&E Cash Management No. … account and the B&E Limited ‘H’ No. … account (about $1,082) within seven (7) days from the date of this order and that account be otherwise closed; and

   c.a further sum of  $6,322.80 within three months from the date of this order.

2. As between the applicant and first respondent, it is declared that the following property is that of the applicant, namely:-

   a.Motor vehicle 1 in the applicant’s possession;

   b.Motor vehicle 2 in the applicant’s possession;

   c.the applicant’s business, including stock, plant and equipment;

   d.any monies at banks and credit unions and savings and other investments in the sole name of the applicant; and

   e.household furniture and effects formerly used by the parties but now in the possession and control of the applicant.

3. As between the applicant and first respondent, the applicant have no claim or right to interest in:-

   a.any monies at banks or credit unions, savings account or investments in the sole name of the first respondent;

   b.any livestock disclosed by the first respondent and in his possession;

   c.any furniture, furnishings plant or equipment in the possession of the first respondent.

4. As to the husband’s entitlements in Superannuation:-

   a.the following parts of these orders are binding of the Trustee of the Superannuation Fund, member no. … (‘the fund’) and it is declared that this is an order made in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’);

   b.pursuant to s 90MT(4) of the Act, the base amount allocated to the applicant out of the interest of the respondent in the fund is $20,119.40 (‘the base amount’);

   c.in accordance with s 90MT(1)(a) of the Act, whenever the Trustee of the fund makes a splittable payment from the interest of the first respondent in the fund the applicant shall be entitled to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Regulations’) using the base amount and there being a corresponding reduction in the entitled to the person to whom the splittable payment would have been made but for this order;

   d.this order have effect from the operative time and the operative time is twenty eight (28) business days after the date of these orders;

   e.A sealed copy of these orders be served by the applicant’s solicitors upon the Trustee within seven (7) days of the date of this order; and

   f.Each party and the Trustee of the fund be at liberty to apply for a period of up to six months from the date of this order in relation to the implementation of this order effecting the superannuation interest.

5. All extant applications other than any applications for costs are dismissed.

6. In relation to any application for costs, such will be made in accordance with the Family Law Rules 2004 (Cth).

7. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenner & Desmond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 657 of 2014

Ms Jenner

Applicant

And

Mr Desmond

First Respondent

And

Ms Desmond

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are property proceedings between Ms Jenner (‘the applicant’) and Mr Desmond (‘the first respondent’) arising out of a de facto relationship in which they were involved for many years.  There was no issue that the parties commenced a relationship and commenced joint contributions in about April 2001.  I am satisfied on the evidence that they commenced living together in 2007 and separated on 20 June 2014.

2. The applicant commenced proceedings in the Family Court in December 2014 seeking property orders.  Due to a variety of reasons, some of which will be outlined in these reasons, the hearing of the matter was delayed.

3. When it came on for hearing before me the applicant sought a declaration as to the first respondent’s ownership of livestock or a declaration that it was held by his mother in trust for him.  She also sought orders for a payment of about $166,000 from joint accounts plus a payment to her of an additional sum of $110,812.

4. In addition the applicant sought declarations that personal property remain in her possession and that personal property of the applicant remain in his possession, including livestock.

5. Finally she also sought an order under s 106A of the Family Law Act 1975 (Cth) (‘the Act’) to execute documents and a superannuation splitting order. I did not make such self-executing order given the circumstances of these parties.

6. The applicant asserted that the first respondent’s initial contributions were greater than hers and said the adjustment ought not to be equal, rather it ought to be on the basis of 40 per cent to her and 60 per cent to the first respondent subject to questions about the property of the parties.

7. The first respondent has been reluctant to become involved in these proceedings.  He asserts that the financial circumstances of the parties and his business, since separation has been disastrous.  Consequently, he has no equity in any property and that there ought not to be any orders.

8. Further, he asserted that the monies that the parties have in the joint bank account ought to be applied to the payment of debts owed by him or the parties jointly.

9. The first respondent appeared for himself although he had some legal help throughout the context of the proceedings.  I had regard to him being self-represented in terms of my assessment of his evidence and of the way he conducted the proceedings.

BACKGROUND

1. The first respondent is aged 42 and is a farmer by occupation.  He contends that since the end of the parties’ relationship his financial circumstances have deteriorated substantially, that he no longer has livestock, and that the farmland upon which he operated as a business has been lost, as has the business.

2. The applicant is aged 38 and runs a retail business, which she purchased in April 2000.  About a year after purchasing the business she and the first respondent commenced a relationship and commenced jointly contributing.  At the same time they commenced a relationship the first respondent began taking livestock to agricultural shows, and he then started a livestock business in 2002.

3. In 2007 the parties commenced living together and two years later they commenced another agricultural business.  Livestock were purchased and the business was operating on property owned by another person.

4. There is no issue that the applicant did the book-keeping for the business, ran her own retail business and I am satisfied that she, from time to time, provided money to enable the both agricultural businesses to continue.

5. The parties separated on 20 June 2014, at which time they owned substantial numbers of livestock.

6. The first respondent claimed that he had sold his original livestock (numbering about one hundred and fifty animals) to his mother in 2012 for $600.  This livestock was worth substantially more than that sum at that time, particularly having regard to the evidence of Mr I.[1]

   [1] Report dated 25 February 2016 annexed to affidavit of Mr I filed 22 June 2016.

7. These proceedings were commenced by way of an initiating application filed 18 December 2014.  The first respondent filed his response and statement of financial circumstances in March 2015.

8. The parties endeavoured to settle the matter in a conciliation conference in August 2015 and the proceedings were not settled.  At that time the first respondent’s mother, Ms Desmond, (‘the second first respondent’) sought to become a party to the proceedings as she claimed an interest in the livestock, to which I have referred earlier.

9. As to the proceedings, after separation a family violence order was made in favour of the applicant against the first respondent and that order remains in force.  As a consequence during the hearing I did not permit the first respondent to cross-examine the applicant other than via questions through me.  This was accepted as a satisfactory process by both the applicant, through her counsel, and the first respondent, who was representing himself.

10. In these reasons any statement of fact is to be regarded as a finding of fact, unless the contrary is clear from the context of the statement.

THE ISSUES

1. The matter came before me on 12 November 2015 in relation to a number of issues.  One issue was the provision of funds to enable the purchase of feed for the livestock.  Another issue was regarding the appointment of experts to value some aspects of property and another issue was a claim by the second respondent to livestock, which had been allegedly been transferred to her in early 2012.  An order was made directing payment of $220,332.01 to D Pty Ltd and the second respondent was directed to file and serve an affidavit providing evidence as to her acquisition of the livestock in 2012.  Further, orders were made for the appointment of single experts to value the both groups of livestock.

2. The second respondent filed an affidavit on 10 December 2015, but when the matter came back before the Court on 20 January 2016 the second respondent did not appear.  She did appear when the matter came before me on 9 February 2016 when the matter was listed for hearing, but did not appear before me in July 2016.  Accordingly, the matter was listed for possible undefended hearing on 12 July 2016. On that occasion the first respondent filed an affidavit and asked for permission to continue his involvement in the proceedings and not proceed on an undefended basis.  That application was successful.

3. However, orders were made specifically listing the matter for final hearing commencing 8 November 2016 and directing that the first respondent file and serve a number of documents including the orders he sought, copies of his recent superannuation statements, details of the sale of livestock and other financial documents.  He was directed to file any further affidavit material upon which he relied.

4. At that time there was no appearance by or on behalf of the second respondent, although she was forwarded a copy of that order.

5. There was little compliance with that direction by the first respondent and the matter came on for hearing before me on 8 November 2016.

EVIDENCE

1. The second respondent has not participated in these proceedings for some time. The first respondent did not seek to call her nor did he rely on her evidence. She has been given an opportunity to pursue her asserted interest in the livestock and she has not done so.

2. During the course of the hearing on 8 November 2016 the respondent asserted that some of the livestock were owned by his father. The evidence was that he bought and sold these animals. He treated them as his in terms of his dealings with the livestock bank.[2]  I accept the submissions by counsel for the applicant that the ownership of those livestock rests with the first respondent and I am satisfied that the livestock was the property of the respondent.

   [2] Exhibit A4 page 1, Exhibit A4 page 69 and 73 – declaration of ownership of livestock.

The applicant

1. The applicant relied upon the following documents:-

   (a)her further amended initiation application filed 28 June 2016;

   (b)her affidavit filed 21 December 2015;

   (c)her affidavit filed 1 July 2016;

   (d)her financial statement filed 21 December 2016;

   (e)the financial statement of the first respondent filed 12 March 2015;

   (f)an affidavit of Mr J Jenner filed 21 December 2015;

   (g)an affidavit of Mr K filed 23 December 2015;

   (h)an affidavit of Mr L filed 11 February 2016;

   (i)an affidavit of Mr I filed 22 June 2016; and

   (j)an affidavit of Mr M filed 24 June 2016.

2. The applicant, through her counsel, tendered in evidence a number of documents, including:-

   Exhibit A1-       applicant’s amended case information;

   Exhibit A2-       the Superannuation Information form;

   Exhibit A3-       ANZ superannuation form; and

   Exhibit A4-       applicant’s tender bundle which included documents from G Bank.

3. These exhibits, affidavits and financial statements were admitted into evidence without objection, but subject to weight.

4. The applicant provided evidence in terms of her affidavits filed 21 December 2015 and 1 July 2016. 

5. In those affidavits she gave un-contradicted evidence of the hard work undertaken by both she and the first respondent during the course of their relationship together with the assistance provided by her father.  She outlined her role as homemaker and her role as terms of contributions from her business.

6. I do not intend to go through it chapter and verse except to say that I accept that it is accurate and she was not, in any way, seriously challenged in cross-examination.  She impressed me as a witness of honesty and was frank in giving her evidence.

7. The first respondent did not keep her informed of business decisions following their separation, blaming her false or exaggerated allegations of violence.  He sought to minimise such allegations.

8. The first respondent cross-examined the applicant in relation to money she took from the business in August 2014.  I am satisfied that these were funds taken from the business having regard to the flow of monies from the applicant’s business to the respondent’s business from time to time.  I have had regard to it in terms of the adjustment of property.

9. There was a second amount allegedly taken from the business.  On the evidence of the first respondent this was $6,000, and on the evidence of the applicant it was $4,000.  I am satisfied that this amount arose, as asserted by the applicant, as a result of damage done to her premises through the violence of the first respondent.

10. The applicant was frank, careful and cautious in her evidence and was not in any way shaken.  I am satisfied that her evidence was generally reliable.

Mr J Jenner

1. Mr J Jenner is the applicant’s father, who provided evidence in terms of his affidavit filed 21 December 2015.  The parties lived at Mr Jenner’s home from 2007 until their separation in 2014.  I have had regard to that in terms of contributions.

2. Mr Jenner was not cross-examined in relation to his affidavit evidence, it was read into evidence uncontested.  I have given significant weight to that evidence.

Mr K

1. Mr K is a friend of the parties and provided evidence as to the applicant’s contributions.  Mr K worked in business with the respondent at one stage and provided evidence of the involvement of the applicant in the business.  His evidence[3] was admitted on uncontested basis, and I have treated it on that basis.

   [3] Affidavit of Mr K filed 23 December 2015.

Mr L

1. Mr L provided evidence[4] as to the value of the plant and equipment used in the farming business.  He valued the market value of that material at $459,900.  There was no objection to his affidavit evidence being read in and he was not cross-examined.

   [4] Affidavit of Mr L filed 11 February 2016.

2. During his evidence and in submissions the respondent asserted that if the material was sold on a fire sale basis it would achieve less.  Notwithstanding that evidence, I accept the valuation provided by the single expert and his qualifications.

Mr I

1. Mr I is an expert valuer of livestock and provided evidence in terms of his affidavit filed 22 June 2016.  That affidavit was read into evidence.  Mr I was questioned by counsel for the applicant, but not questioned by the respondent.

2. He was asked about whether he inspected some livestock on another property and he said that that did not occur.  I accept his evidence as reliable and his expertise unchallenged.

Mr M

1. Mr M is a valuer of livestock and provided affidavit evidence[5] as to the value of the livestock, to which I have alluded elsewhere.  He accepted their value was between $749,700 to $815,000 and said that the average of those two values was a fair market value for those livestock. I accept his evidence as reliable and his expertise unchallenged.

   [5] Affidavit of Mr M filed 24 June 2016.

The first respondent

1. The first respondent relied upon his affidavit filed 11 July 2016, which was read into evidence.  He asserted that in recent times he has re-mortgaged the plant and equipment worth $459,900 and are now subject to a mortgage of some $301,000.

2. He adduced no evidence of this new mortgage.  When asked about that he said all documents were with his accountant and he could not provide copies.  Given the orders made by me in July of last year I am sceptical about that evidence and I do not accept his evidence in that respect.

3. For the purpose of the assessment of property I have treated the liabilities on the chattels as set out in his statement to G Bank[6] at some $133,748.

   [6] Exhibit A4 page 1.

4. The first respondent gave evidence as to the other liabilities he has incurred in the business, totalling some $300,000.  That was attached to his trial affidavit although not all invoices were produced.

5. Given that this was also the amount that he asserted to G Bank I am satisfied that he owes various creditors those amounts of money.

6. The first respondent did not give details of the sales of livestock nor did he provide the documents that he was required to produce.  He did not file a further affidavit.  Whilst he was unrepresented some of his answers to questions were such that he dissembled.  In essence he said that the livestock, which he knew had a value of some $780,000, were taken by G Bank, paid out the mortgage and left him with a liability of some $140,000.  He produced no documentation in respect of that and I do not accept his evidence that he took such a loss on that livestock.

7. I do accept his evidence, however, that the livestock had been taken although I cannot work out what amount of money he received or did not receive for that, particularly due to his refusal or neglect in providing objective documentary information.

1. He was cross-examined about a number of documents and he either dissembled or obstructed.  An example of that was in relation to the invoices he did provide and did not provide in his earlier affidavit.

2. He was pressed about agisting livestock and initially said the livestock were his father and mother’s livestock but on property near an air field.  When pressed and provided with documents he conceded that there were some 37 head of livestock on another property.  He said that these were included in the valuation, but from the evidence of Mr I they were not included.

3. He dissembled when pressed about certifying ownership the livestock in declarations to N Pty Ltd.

4. I am not satisfied that the first respondent is frank in terms of his evidence and it is unreliable.

THE LAW

1. The law regarding the treatment of property is under some level of refocus and review following the High Court decision in Stanford v Stanford.[7]  Prior to that decision the preferred (although not uncontroversial approach ) was the four stage process reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

   [7] [2012] HCA 52, (2012) 293 ALR 70.

2. Following Stanford v Stanford (supra) the Court must firstly satisfy the requirement of s 79(2), that any order must be “just and equitable”, before then examining what orders should be made under s 79(4).

3. This approach was later adopted in Bevan & Bevan[8], where Bryant CJ and Thackray J noted that the Stanford v Stanford (supra):-

   decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.[9]

   [8] (2013) FLC 93-545.

   [9] Ibid at para 65.

4. In Chapman v Chapman[10]the Full Court considered the independence of ss 79(2) and 79(4) and agreed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ confirmed:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation.

   [10] [2014] FamCAFC 91.

5. However, their Honours disagreed with any intention of plurality found in Bevan v Bevan, (supra) in that the Court must consider the matters in s 74(2) when addressing s 79(2) of the Family Law Act 1975 (Cth) (‘the Act’). This was in view of the opposite approach adopted by the High Court in Stanford.  Bryant CJ in a separate judgment noted:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

6. Accordingly, there are tasks I must complete when determining a division of property.  These are:-

   1.identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;

   2.consider whether in the circumstances of the parties it is appropriate and just and equitable for order to be made with regard to s 79 of the Act; and

   3.consider any relevant contribution and other matters that should be taken into account under s 79(4) of the Act.

7. I have adopted that approach.

DE FACTO RELATIONSHP

1. I am satisfied the parties commenced a relationship in 2001 and they commenced cohabitation in 2007. Their relationship subsisted as a genuine de facto relationship, having regard to the definition under the Act, from 2007 until June 2014 and that that relationship has come to an end. As such, I am satisfied that the Court has jurisdiction to determine the contested applications.

ASSETS AND LIABILITIES

1. The following are the assets and liabilities of the parties to which I have had regard:-

Applicant’s assets and liabilities

Assets

Money in bank

$10,700

Motor vehicle 1

$17,450

Motor vehicle 2 $22,500 less chattel loan

of $13,351

$  9,148

________

TOTAL

$37,298

Liabilities

Credit card debt

$  3,900

Debt to applicant’s brother

TOTAL

$22,450

$26,350             

 NET ASSETS IN APPLICANT’S NAME

$10,948

1. The applicant gave evidence that she and her new partner have recently purchased a house in August of 2016.  The house had been purchased for $385,000.  Her partner had paid $200,000 as a deposit on the property and the balance was secured by mortgage.

2. The applicant had an interest of 27.5 per cent of the property and had no equity in it.  I accept that evidence and I accept given those circumstances whilst it is property owned by the applicant it has no value at this time.

3. There was some challenge in relation to the amount owed by the applicant to her brother.  I accept her evidence in that respect that it was a debt, which was raised with regard to the business.  I also accept that the credit card debt is as asserted by the applicant in the course of her business.

4. There were no other challenges to the property of the applicant and I accept her estimate as to the value of the motor vehicles and the monies in the bank.

5. In addition the applicant had superannuation entitlements of some $1,553.  I have dealt with superannuation separately.

6. As to the respondent’s property I am satisfied it comprises of the following:-

Respondent’s assets and liabilities

Plant and equipment	$459,900
Less creditors	$300,000
Less chattel loans	$133,748
TOTAL LIABILITIES	$433,748
NET ASSETS	$  26,152

1. In addition the first respondent had superannuation entitlements of some $50,800 and ANZ One Path of $1,828.

2. There was other property which may or may not have been owned jointly.  It was agreed that the parties had $166,082 in a joint bank accounts, being $165,000 in one account and $1,082 in another account.

3. The other two assets, which were troubling, were the two lots of livestock.  In February 2016 Mr I, a single expert, valued the initial group.  His affidavit was read into evidence and he was not challenged in terms of the valuation nor was he challenged in terms of his qualifications.  He valued the livestock at $255,200.

4. Given the evidence of the applicant contained in her affidavit and the comments I have made about preferring her evidence to that of the first respondent, I am satisfied that these livestock belong to the respondent and that it has always been and remain available to him.

5. There was no evidence of meaningful sales and there is evidence that there may be some livestock kept at other property or at least another property.  As such I am satisfied that he had an asset in the form of those livestock with a value of $255,200.

6. Therefore there are joint funds in the bank and the livestock totalling $421,282.

7. The applicant and first respondent, primarily the first respondent given the applicant’s work and her business and role as home maker etcetera, set up a business using property owned by a member of the respondent’s family.

8. The second group of livestock was valued by Mr M in mid and late 2015.  In summary he determined that there were some 725 animals and that the value of the animals was approximately $782,400.

9. There had been difficult times in the agricultural industry following separation and I am satisfied that the first respondent was not keeping the applicant informed of the circumstances.

10. There were substantial bills run up and the respondent entered into a commercial arrangement with the G Bank to take his livestock and to provide income. As at April of 2016 the livestock had a value of some $782,400 and a liability to G Bank of $519,000.

11. The first respondent said that all of the livestock, including the offspring (which would have been taken contrary to the terms of the agreement between the first respondent and G Bank), were taken by G Bank and that he owed that organisation the sum of $150,000 (approx.).

12. Despite orders made to the contrary, the first respondent adduced no evidence to that effect and no evidence of any documents to that effect.  I am satisfied that the dairy herd was taken by G Bank, but I am not satisfied as to the veracity of the figures provided by the respondent.

13. As such I will treat its value at nil and I will not treat any liability as one to which should vest in the applicant. 

14. The applicant has a retail business, which she has valued at nil.   She paid $35,000 for that business some sixteen or so years ago.  There was no application for valuation of that retail business.

15. Given the state of the evidence, I will treat its value as asserted by the applicant.

CONTRIBUTIONS

1. It is clear that the first respondent came into the relationship with significantly greater contributions than that of the applicant. 

2. At the commencement of cohabitation the applicant owned a motor vehicle and a retail business with a liability, much of the liability still remains in place.  The first respondent owned approximately 120 livestock and a rental investment property, which was subject to a mortgage.  That property was sold in 2009 realising about $90,000, which was used by the parties.

3. During the course of cohabitation the applicant’s father provided free accommodation and broader expenses and also provided unpaid assistance in respect of the management of livestock.

4. The applicant provided funds for the livestock businesses from time to time and bought clothes for the first respondent.  She was primarily responsible for household duties.

5. The applicant undertook book-keeping for the business.

6. I am satisfied that since separation the first respondent has sold livestock and retained the proceeds of those sales.

7. The parties worked hard over a number of years and created two businesses.  The first livestock business provided significant resources to both of the parties.  The other was the retail business, which at times funded the two livestock businesses. The parties applied their income to developing both livestock businesses.  They built up plant and equipment to enable that to occur.

8. The breakdown of their relationship was traumatic for both parties and due to difficult economic circumstances the agricultural businesses has deteriorated.  However, I am not confident it has deteriorated to the extent asserted by the first respondent.

9. I accept the submissions of counsel for the applicant that the contributions overall should be waived in favour of the first respondent and I have done so.

10. Considering all of the evidence and the submissions, I am satisfied and consequently determine that the non-superannuation property and the superannuation property contributions are 40 per cent by the applicant and 60 per cent by the first respondent.

OTHER FACTORS

1. Both the applicant and first respondent are relatively young.  There are no children of their relationship nor do they have any other party for whom they have a responsibility to support.

2. There are no relevant factors under s 75(2) of the Act which this Court needs to consider.

SUMMARY

1. I am satisfied that there ought to be an adjustment of property as between the parties given the breakdown of the relationship and the financial circumstances that exist between the parties. 

2. I am satisfied that it is just and equitable to divide the property as submitted by counsel for the applicant, taking into account that the first respondent has retained proceeds from the sale of livestock and that there is likely to be livestock available to him other than that included in the valuation referred to earlier.

3. Having regard to the earlier findings, the net assets of the parties are:-

Assets of the applicant	$  10,948
Assets of the first respondent	$  26,152
Joint assets being money in bank and livestock	$421,282
TOTAL	$458,382

1. The total net property of the parties is $458,382.  Having regard to the contribution factors, set out earlier, adjusting it on the basis of 40 per cent to the applicant is $183,352.80 and if the applicant’s existing property is deducted from that sum vis $183,352.80 less $10,948 (already held by her) this leaves an amount due to the applicant of $172,404.80.  There is $166,082 in the joint bank accounts, leaving a sum of $6,322.80 payable to the applicant by the first respondent, if I adopt that course.

2. If I adopt the same percentage in relation to superannuation in that the superannuation is:-

Applicant’s superannuation	$  1,553
First respondent’s superannuation	$50,800
First respondent’s ANZ superannuation	$  1,828
TOTAL SUPERANNUATION	$54,181

1. Forty per cent of that sum is $21,672.40 of which the applicant has in her control $1,553, leaving a balance payable to her by way of a splitting order of $20,119.40.

2. As set out above, I have identified, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in property.

3. Given all of the facts and circumstances, I determine that it is appropriate and just and equitable for order to be made with regard to s 79 of the Act.

4. I have considered the relevant and relative contributions made by each of the parties and the other matters that should be taken into account under

   
   

   s 79(4) of the Act. I have determined the split of both superannuation and non-superannuation property as set out above, and I am satisfied that it is just and equitable in the particular circumstances of these parties.

5. Accordingly, I have made orders in terms of that property adjustment.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 December 2016.

Associate:     

Date:              1 December 2016