Jordan and Jordan - [2011] FMCAfam 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JORDAN & JORDAN

[2011] FMCAfam 457

FAMILY LAW – Property – greater initial financial contributions by the husband – section 75(2) factors favour the wife.

Family Law Act 1975, ss.75(2), 79, 79(4)

Hickey and Hickey (2003) FLC 93-143

Applicant:

MS JORDAN

Respondent:

MR JORDAN

File Number:

MLC 6562 of 2009

Judgment of:

Hughes FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Melbourne

Delivered on:

12 May 2011

REPRESENTATION

Counsel for the applicant:

Ms Elleray

Solicitors for the applicant:

Schetzer Constantinou

Counsel for the respondent:

Ms Jenkins

Solicitors for the respondent:

Berry Family Law

ORDERS

Within 60 days of the date of these orders (“the due date”) the wife shall transfer to the husband at his expense all her right title and interest in the property known as [address omitted] [Suburb A], Victoria (“the real property”)
Simultaneously with the transfer of the property:
(a)the husband shall pay to the wife the sum of $180,134 (“the payment”);
(b)the husband shall refinance the mortgage over the real property into his name alone; and
(c)the husband shall indemnify the wife and keep her indemnified in relation to all future liability in relation to the real property.
The husband is liable for the payment of all rates associated with the real property from July 2009.
The husband and the wife shall each forthwith pay one half of all late payment penalties, fees and interest in relation to the non-payment of rates for the real property between July 2009 and the date of these orders with the wife’s share to be deducted from the payment in order 2(a) unless otherwise agreed.
In the event the husband fails to make the payment by the due date the parties shall forthwith take all necessary steps to sell the real property at public auction and shall apply the proceeds of sale as follows:
(i)firstly, in payment of all commissions and costs of sale;
(ii)secondly, to discharge the existing mortgage and any other encumbrance over the property;
(iii)thirdly, to pay all outstanding rates and all late payment penalties, fees and interest in relation to the non-payment of rates for the real property between July 2009 and the date of these orders;
(iv)fourthly, the amount of $180,134 to the wife with interest payable at the Family Law Scale, less an amount equivalent to half of the amount attributable to late payment penalties, fees and interest in relation to the non-payment of rates for the real property between July 2009 and the date of these orders; and
(v)fifthly, the balance to the husband.
The parties have liberty to apply in relation to the terms and conditions of sale of the real property.
The husband shall, within 14 days of the date of these orders, provide the following to the wife if he has not already done so:
(a)a selection of tools remaining at the real property after separation and one of the tool boxes;
(b)a copy of all digital family photographs; and
(c)one half of all printed family photographs. In the absence of agreement as to which photographs the wife should take, the parties shall meet together with all of the photographs and take turns choosing a single photograph until all of the photographs are distributed between them.
The wife is declared to be the sole owner of the funds held in the parties’ joint account, expected to be approximately $5,000.
Except as otherwise provided in these orders, each party is declared to be the sole owner, to the exclusion of the other, of all property in their possession or name at the date of these orders.
Otherwise, all extent applications are hereby dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6562 of 2009

MS JORDAN

Applicant

And

MR JORDAN

Respondent

REASONS FOR JUDGMENT

These are property proceedings following a nine year relationship.
The property pool is modest, comprising almost $348,000 in non-superannuation assets and $116,600 in superannuation.
The main issues in dispute are, firstly, the weight which ought to be attributed to the husband’s greater initial contributions and, secondly, the effect of the disparate income earning capacities of the parties. The husband argued that a proper weighting of his initial contributions would result in an overall adjustment of 65 per cent of the property pool to him. The wife argued she should take 70 per cent of the pool, primarily because of her inferior income earning capacity.
The matter was listed for two days on 31 March and 1 April 2011. The parties were hopeful of reaching agreement and spent the first day in negotiations. It became clear late on 31 March that they would be unable to agree. The matter was heard on 1 April 2011.
Parenting issues were initially also in dispute but, following the advice of Mr P, psychologist, the parties had already implemented a week about arrangement for the two children of the marriage. Orders formalising that arrangement were made at the end of the property trial.

History

The parties commenced cohabitation in May 2000 and married on 14 April 2001. They separated under the one roof in March 2009 and physically separated in mid July 2009.
The parties have two children: [X], born in 2002 who is eight years old, and [Y] born in 2004 who is seven years old.
After separation the husband remained in the former matrimonial home at [Suburb A]. The wife moved into a rental property in [Suburb A] in mid-2009 and more recently moved to a rental property in the nearby town of [Suburb B].
The husband would like to retain the former matrimonial home. Whether or not he can do this will depend on his borrowing capacity and how much he needs to pay the wife to buy out her share of the property.
At the commencement of the relationship, the wife was employed full-time as a [occupation omitted] for the [Company B]. She remained in that employment until the parties’ first child, [X], was born. Six months after [X]’s birth she returned to work on a part-time basis, working three days each week until two weeks before the birth of [Y]. She did not return to work at [Company B] after that.
In August 2005 the wife was diagnosed with bipolar disorder. She was hospitalised twice and undertook treatment in the form of medication and counselling. Her uncontested evidence is that her condition had stabilised by March 2007 and remains well managed.
The wife worked in a [organisation omitted] for two days each week between January 2006 and June 2007. She said she was unable to continue that work because she found the environment very stressful.
In June 2007 the wife commenced work as a [occupation omitted] for the [organisation omitted]. She subsequently qualified as a [occupation omitted] and now works on a casual basis both as a [occupation omitted] and as a [occupation omitted]. She has also undertaken limited training to assist her to develop some administrative skills.
At the commencement of the relationship the husband worked full time in his own business, the [Company C]. That business was sold during the marriage. The proceeds of sale were used to retire debt and no profit was made.
The husband subsequently worked for [Company A] for two years but was made redundant in June 2009, three months after separation under the one roof and shortly before the physical separation. At that time he received a redundancy payment from [Company A] of a little over $85,000.
The husband was unemployed from June 2009 until January 2010 except for a period of 8 to 12 weeks in approximately July to September 2009 when he obtained a short term contract. In January 2010 the husband secured a 12 month contract with the [organisation omitted]. He filled a [omitted] role while another employee was on maternity leave. Before the contract ended he was offered another six-month contract as the [occupation omitted]. That contract is for a fixed term and will expire on 30 June 2011.
The husband said in his oral evidence that he had recently had a meeting with the Chief Executive Officer of the [organisation omitted]. He said he was given no indication that he would be offered a further contract or an extension of his existing contract. He said he thought it unlikely his current position would be extended as he is carrying out a one-off review of the organisational structure which is time limited.
A copy of the offer of employment made to the husband on 17 December 2010 and the formal contract of employment were tendered in evidence. Those documents describe the objectives of the husband’s position as follows:
1) To lead and implement an all-encompassing organisational renewal process including reviewing, developing and leading the implementation of organisation performance management systems
2) To lead and be accountable for the implementation of the [organisation omitted] indigenous employment program
3) To develop and manage the [omitted Team] to provide industry benchmark business services and information management for the [organisation omitted] and its key stakeholders
On their face, each of the three objectives of the position suggests a much longer time frame than six months. It is hard to see how objective 2, in particular, would be achieved in six months as it clearly involves an ongoing program. Objective 3 also seems to be a long-term project. This, of course, does not necessary mean the husband will be offered further employment but the job for which he was employed does not seem to be as limited in time as what the husband suggested in his evidence.
At the commencement of cohabitation in May 2000, the husband had an interest in two real properties. The first was a unit in [Suburb C] which he bought in 1993 for $132,500 and sold in June 2003 for $427,200. After discharge of the mortgage, the net proceeds were $286,050.
Prior to cohabitation, the husband also had a 25 per cent interest in an investment scheme in which four individuals (one of whom was a Company) purchased three units in a block of units in [Suburb D]. The units were bought in March 2000 and sold in 2005. No profit was made on the investment as the husband’s share was fully mortgaged for the entire period. Some rental income was derived during that period but interest was paid on the loan throughout. There is insufficient evidence for me to compare the total income and total borrowing costs in order to determine any net benefit or loss.
In June 2003 the parties purchased the former matrimonial home at [Suburb A] for $441,500. It was bought in the wife’s name alone. The purchase was partly funded from some of the proceeds of sale of the [Suburb C] property. The balance was borrowed from the National Australia Bank.
According to bank statements which became exhibit H1 in the proceedings, the net proceeds of sale of the [Suburb C] property were disbursed as follows:
10/06/03 $ 30,448.50 transferred to [Suburb D] mortgage account
21/07/03 $ 98,000.00 transferred to [Suburb D] mortgage account
22/07/03$157,601.05 balance to husband’s account
Total$286,049.55
The $30,448.50 transferred to the [Suburb D] mortgage account on 10 June 2003 was the deposit paid by the purchaser of the [Suburb C] property. The husband said the money was transferred into the [Suburb D] account because it was the only account which had a cheque facility. The parties wrote a cheque for $30,000 two days later to pay the deposit for the [Suburb A] property.
Of the $157,601 which went into the husband’s account from the proceeds of sale of the [Suburb C] property, an amount of $126,327 was paid towards the purchase of the [Suburb A] property. The balance of approximately $32,000 went into general household finances.
The [Suburb C] property had been used by the husband to secure his mortgage in relation to the [Suburb D] investment properties. When the [Suburb C] property was sold in June 2003, the bank reduced the husband’s credit facility from $140,000 to $90,000. At the time of the sale of [Suburb C], the balance on the [Suburb D] credit facility was just under the limit of $140,000. The transfer of $98,000 from the proceeds of sale of the [Suburb C] property to the [Suburb D] mortgage account on 21 July 2003 reduced it to just over $41,000.
By the time the [Suburb D] investment properties were sold in 2005, the mortgage account had increased to $100,000. The husband’s share of the proceeds of sale of [Suburb D] fully discharged that liability and no profit was made.
It is common ground that the parties borrowed money to buy a family vehicle when the wife stopped working for [Company B] as she had the use of a Company vehicle until then.
During the proceedings there was a dispute about penalties and interest arising from the non-payment of rates on the former matrimonial home at [Suburb A]. The wife said that, given the husband has had the sole use and occupation of the property since July 2009, he ought to be liable for the rates. The husband did not dispute his obligation to pay the rates but said the wife should pay the penalties and interest which have accrued as a result of the non-payment because she did not provide him with the rates notices and, because the house is in her name alone, they were not sent to him. The wife said she did send him the rates notices. There is evidence she sent him one but that was not long before the trial. There is insufficient evidence to make a positive finding about precisely who is at fault for the non-payment of the rates. Accordingly I will order that the husband pay the outstanding rates and that the parties each pay one half of the penalties and interest which have accrued as a result of the non-payment.

Credit issues

Both parties appeared to be honest witnesses. In her opening, counsel for the wife said the wife’s bipolar disorder “makes her a bit foggy”. In her evidence, the wife said that she finds it difficult to focus on and recall the details of various financial transactions. This was reflected in her evidence. She was unable to give a coherent account of the financial history of the relationship.
The husband, by comparison, was very clear and straightforward in his evidence. He was shown to be inaccurate on a few occasions but on at least one occasion it was to his own prejudice. He had said in his affidavit filed on 29 March 2011 that the mortgage over the [Suburb C] property at the time it was sold was approximately $207,000. It was in fact approximately $130,000 which means he understated the equity in his property.
The wife said the husband had been controlling of her and the financial arrangements throughout the relationship. There was, however, no evidence of this except that, after the wife obtained separate rental accommodation in [Suburb A], the husband unilaterally changed the locks on the former matrimonial home. This occurred before the wife had actually moved into her rental premises and reflects poorly on him. The husband said he changed the locks because the wife was progressively moving items out of the home before they had reached an agreement about what she could take. He said the wife had told him she would be coming with a removal truck to take items of furniture. He said he wanted to prevent her doing so before they had reached agreement.
At paragraph 22 of his affidavit filed on 29 March 2010, the husband said the following about the wife’s actions:
The Wife has previously unilaterally removed in my absence numerous pieces of furniture and chattels from the real property. The Wife has declined, despite numerous requests, to provide a formal inventory of the items removed by her from the home. However, from my personal observations I would say that the Wife has removed items with a re-sale value of between $6,000.00 and $8,000.00.
During cross examination, the husband agreed the wife had not removed any furniture at all until the parties reached agreement shortly before the trial. His earlier evidence was wrong and quite misleading.
The wife alleged the husband had reneged on an agreement to provide her with a tool box containing a share of the tools and copies of family photographs. The husband said the agreement had only been made during the last few weeks and he fully intended to honour the agreement. He said he would have the tool box ready on the next occasion the children went to their mother. He said some photographs had already been provided and that he would ensure the rest were made available promptly.
Overall, I make no adverse findings as to credit of either party. Given the wife’s vagueness, and notwithstanding the husband’s misleading evidence discussed above, I generally found the husband’s evidence about the financial history clearer and more persuasive than that of the wife.

The law in relation to property settlement

Section 79 of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties. In making a determination about the issue, the Court is required to undertake a four step process as follows[1]:
a)Firstly, the Court is required to identify the net assets or property available for distribution at the date of hearing.
b)Secondly, the Court must assess the contributions of the parties to the acquisition, conservation or improvement of the property as provided in subsections 79(4)(a),(b) and (c) of the Act. Contributions include financial and non-financial contributions, direct and indirect contributions and contributions made to the welfare of the family in the capacity of homemaker or parent.
c)Thirdly, the Court must consider the matters set out in the remaining subsections of section 79(4) which incorporate section 75(2) of the Act. These matters broadly require a consideration of the financial position and resources of the parties, their age and state of health, their necessary commitments in supporting themselves or any other person, the effect of the marriage on the earning capacity of either party and the effect of any proposed order on the earning capacity of either party.
d)Fourthly, the Court is required to determine, in light of the findings arising from the first three steps, what order is just and equitable in the particular circumstances of the matter.
[1] Hickey and Hickey (2003) FLC 93-143 at 78,386

The property pool

The property pool is largely agreed between the parties.
The parties agree that the former matrimonial home at [Suburb A] has a value of $565,000 and a mortgage of $275,000, leaving net equity of $290,000.
The parties have motor vehicles of roughly equal value and agreed to leave them out of the calculation of the property pool.
The husband has [Company A] shares which the parties agree are worth $16,000.
The parties both have superannuation. The parties agree that the wife’s superannuation has a value of $56,156 and the husband’s is worth $60,439. Neither party suggested the superannuation interests ought to be dealt with differently to the non-superannuation assets.
There is a dispute about how much of the husband’s redundancy payment of $85,000 ought to be notionally “added back” to the property pool. The husband received the payment in June 2009, approximately one month prior to separation. The husband said that he has $20,000 left from the payment and is content for that amount to be included in the calculation of the pool. The wife pointed out that, when the husband swore his financial statement on 28 March 2011, he only had $20,000 of the redundancy payment left but his bank statement indicates that one week earlier, on 19 March 2011, he had more than $34,000 in that account. The husband said the difference is accounted for by various expenses including $14,000 worth of legal fees.

A statement in relation to the husband's redundancy payment is annexed to the wife’s affidavit filed on 30 March 2011. According to that statement, the payment received by the husband was comprised of the following:
Five months pay in lieu of notice            $ 66,604.27
Three weeks pay per year of service       $ 20,446.05
Annual leave  $    9,417.89
Wages to 12 June 2009  $    5,187.02
Incentive (bonus)  $ 18,348.62
Sub total  $120,003.85
Less tax  $ 34,920.00
Net payment  $ 85,083.85
The husband argued that the sum of $20,000 reflects the amount of the redundancy related to the two years of service which occurred during the marriage and that, accordingly, this is the appropriate amount to be added back. He argued that the balance is primarily payment in lieu of notice for five months which is roughly the amount of time the husband was out of work before obtaining his current employment. He argued that this is effectively post-separation income and should not be notionally added back.
In my view the amounts which should notionally be added to the property pool from the redundancy payment are as follows:
a)$20,446.05 which is a lump sum calculated by reference to the two years of service which occurred during the marriage;
b)$9,417.89 which is the annual leave component and which presumably accumulated during the period of the marriage;
c)$18,348.62 which is described as “incentive” and presumably is an incentive bonus which is paid by reference to the standard of the husband’s work during the period of employment which fell during the marriage.
These gross amounts total $48,212.56. However, each component is taxed differently. According to the statement, the first two amounts are taxed at a rate of 31.5 per cent or $9,407.14 for the two. The incentive payment was taxed at 38.94 per cent which is an amount of $7,144.95. The total tax on the amounts to be added back is $16,552.09, leaving a net add back of $31,660.47.
At some point following separation and the parties agreed to equally divide an amount of $9,000 in a joint account. The wife withdrew $4,500 but the husband did not. The wife is content to have the $4,500 she has already taken added back to the pool. It is common ground the balance of the account has increased to $5,000 as a result of interest payments.
During submissions the wife’s counsel asked the Court to take into account the personal liabilities set out at paragraph 53 of the wife’s financial statement filed on 30 March 2011. The first two amounts are $11,653 which the wife said she owes to her parents and $5,000 owed to her sister. Counsel for the wife agreed they were post-separation debts but asserted they arose as a result of the wife’s impecunious circumstances and the necessity for her to pay rent. No evidence about these amounts was given during the proceedings and I decline to take them into account.
The next debt is $7,000 for legal fees. Clearly this is not a joint liability and I will not take it into account. The next three items were not pressed by counsel for the wife for different but appropriate reasons.
The property pool therefore is as follows:
Former matrimonial home          $565,000
Less mortgage   275,000
Net equity FMH              $290,000
[Company A] shares   16,000
Joint account      5,000
Add back:
Part husband’s redundancy                    31,660
Joint funds accessed by wife       4,500
Total non-superannuation assets   347,160
Superannuation:
Wife   56,156
Husband             60,439                        116,595
Total property pool          $463,755

Contributions

The parties agree that the contributions during their relationship should be regarded as equal. They do not agree about the weight to be attributed to the additional contribution made by the husband at the commencement of the relationship which comprised the value of the equity in his [Suburb C] property.
The husband’s property in [Suburb C] was purchased six and a half years prior to cohabitation for $132,500. It is reasonable to assume the property appreciated in value to some extent over the years prior to the wife moving into the property but there is no evidence of the value of the property at that point. The mortgage at March 2000, two months prior to the wife moving in, was $88,725.17. At that time the loan was re-negotiated and used to fund renovations.
The parties agreed that the renovations to [Suburb C] included moving the laundry into a cupboard, turning the old laundry area into a new sunroom, installing a new kitchen and bathroom and some other minor works. The wife said there were other, more extensive, works including a restumping of the property and a rendering of the external walls. She said she contributed financially and through her own labour to the renovations.
The [Suburb C] unit was a ground floor unit in a block of six units. He said the body corporate arranged to have the whole block re-stumped and the external walls rendered. The husband said some of the major works had been done prior to the wife moving in but agreed she contributed financially and non-financially to the remainder.
It is not possible on the evidence to ascertain precisely what contribution was made by each of the parties to the renovations. In general, I accept as more plausible the husband’s evidence that the body corporate organised the re-stumping of the whole block of units and the rendering of the external walls of the units. I also accept that some of the major restructuring had occurred prior to the wife moving in. The husband said that, prior to the sale of the property, the wife touched up some of the external rendering which had cracked. I accept that. He also conceded the wife contributed to the renovations financially and through her own labour once she moved in.
I assume the renovations carried out helped to increase the value of the property and that the wife, therefore, contributed to the increase in value. It is likely that the property also increased in value as a result of market appreciation. By the time the property was sold in 2003 the husband had been contributing to it for 10 years and the wife had been making contributions for three years.
The husband argued that the [Suburb C] property contributed significantly to the current asset pool by enabling the purchase of the [Suburb A] property which is the major asset.
The details of the distribution of the proceeds of sale of the [Suburb C] property are set out earlier in these reasons. The net profit, in round terms, was $286,050. This sum represents almost 62 per cent of the value of the current property pool. However, $98,000 was transferred to the [Suburb D] mortgage account and there was ultimately no profit made from the [Suburb D] investment. If that amount is disregarded, the amount utilised by the parties falls to $188,050 which represents just over 40 per cent of the value of the current pool.
Counsel for the husband argued there ought to be a 20 per cent adjustment to him to account for this additional initial contribution. Although the initial contribution by the husband is significant, such an adjustment would, in my view, be excessive. The weight of the husband’s contribution has been offset to some extent by the contributions by the wife over the nine years of the relationship and by her contributions over a three year period to the [Suburb C] property.
In my view there should be an adjustment of 12 per cent in favour of the husband in recognition of his greater initial contributions.

Section 75(2) factors

The wife is 40 years of age. She works on a casual basis as a [occupation omitted] and [occupation omitted] and earns approximately $25,000 per annum.
Counsel for the wife invited me to take judicial notice of the fact that the wife’s Bipolar Disorder would impede her capacity to earn significant income. I am not prepared to do so. No medical evidence was filed in relation to the wife’s condition and I have no basis on which to make an assessment of its impact on her income earning capacity. In her own affidavit filed on 30 March 2011 the wife said that her Bipolar Disorder is well managed through medication.
It is common ground that the wife has had back problems. When it was put to the wife this prevented her doing much physical labour during the renovations of the [Suburb C] property, the wife denied that. She said she injured her back falling down stairs in about 2001 but it did not stop her working as a [occupation omitted] which required her to lift and move boxes and engage in other physical activity. It also did not affect her during her childbearing years.
The wife is a qualified [occupation omitted] and [occupation omitted]. She has done a small amount of administrative work at the [organisation omitted] but says that she needs more training and experience if she wanted to move into an administrative stream. The wife said she tries to make herself available as much as possible for shifts but, given the positions are casual, her income is unlikely to increase much above $25,000 in the near future if that is her primary source of income.
The wife has struggled financially since separation. She has had to resort to charity including food parcels from the Salvation Army because of the cost of renting a home sufficient to accommodate herself and the children who will continue to live on a week about basis with each parent.
The husband currently earns a salary of $106,000 per annum with superannuation of $9,540, making a total annual package of $115,540. His current contract will come to an end on 30 June 2011 and there was no indication at the time of trial that the contract would be extended. However, the husband has earned an annual income of over $100,000 for many years. Even if he experiences some periods of unemployment, his employment history suggests he is likely to find further well paid work. I am satisfied that his income earning capacity is significantly greater than that of the wife and is likely to remain that way for the rest of their working lives.
The husband has repartnered with Ms J. He and Ms J do not live together. Ms J works as a [occupation omitted] and has three small children. The husband said he and Ms J do not have immediate plans to live together but they have been together since about September or October 2009 and the husband said the relationship is “developing”. There is no evidence about the income of Ms J. If she relocated to live with the husband, she would have to leave her current employment and try to find a job in the [Suburb A] district. As there would be five children in the household, she and the husband may need to move to other, bigger accommodation. Given the level of uncertainty, I do not take the husband's relationship with Ms J into account in assessing the section 75(2) factors.
The children of the parties are aged eight and seven years respectively. They will be dependent on the parties for many years to come. The week about parenting arrangement means the parties have the same obligations in terms of providing appropriate accommodation and support for the children. The wife’s capacity to properly support herself and the children is compromised by her low income earning capacity although, while ever there is a significant income disparity, she will receive child support from the husband. The wife suggested that the husband was not paying child support at the appropriate level. This was denied by the husband and there was no evidence to support the wife’s assertion.
The wife's income earning capacity has been affected to some degree by the marriage because she worked full-time until the children were born and only part-time and casually since then. She has not worked full-time for more than eight years. She is keen to work longer hours when the children are in the husband’s care but, even then, she will remain in a financially less advantageous position than the husband.
The husband's greater income earning capacity gives him greater capacity to recover financially from the effects of the marriage breakdown and the division of property. Along with his higher income he will accumulate superannuation at a much faster rate than the wife.
In my view there ought to be an adjustment of 15 per cent in favour of the wife to take account of these section 75(2) factors. This would lead to an overall adjustment of 53 per cent of the property pool to the wife and 47 per cent to the husband.

Justice and equity considerations

A 53 per cent share of the property pool to the wife means that she would take property to the value of $245,790. A 47 per cent share to the husband means he would take property to the value of $217,965.
The husband wishes to retain the former matrimonial home at [Suburb A]. This has obvious advantages for both him and the children who are used to living in that home.
If the wife takes the funds remaining in the joint account and each party retains their own superannuation, the husband would need to make a cash payment to the wife in the sum of $180,134 in order to retain the home. This can be seen from the following table:
Husband:
Former matrimonial home   $290,000
[Company A] shares   16,000
Add back part redundancy payment          31,660
Superannuation     60,439
Subtotal   398,099
Less cash to wife  $180,134
Total  $217,965
Wife:
Funds in joint account   $    5,000
Add back funds already taken   4,500
Superannuation   56,156
Subtotal   65,656
Plus cash from husband   180,134
Total   $245,790
There is some risk that the husband will not be able to raise sufficient funds to make the cash payment to the wife because the equity in the [Suburb A] property is only about $110,000 more than what he would have to pay her. A bank may be unwilling to lend more funds to him when he is on a fixed term contract of employment which is due to end in June 2011. In that case the property may have to be sold in order to make the payment. In those circumstances the husband said he would have to rent a property in the [Suburb A] area.
If the wife wishes to purchase a property she will have to bear the costs of purchase, including stamp duty, which the husband will not have if he retains [Suburb A]. It would not be just and equitable from the wife’s perspective for her to receive less cash in order to ensure the husband can retain [Suburb A].
I am satisfied that the division of property is just and equitable in the circumstances of this case and will order accordingly.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Hughes FM

Date: 12 May 2011