Kennedy v Manns

[2006] NSWSC 726

CITATION:	Kennedy v Manns [2006] NSWSC 726
HEARING DATE(S):	17 and 18 July 2006
JUDGMENT DATE :	28 September 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
CATCHWORDS:	Family Law. Application for property adjustment under Property (Relationships) Act 1984. Whether global or asset by asset approach should be adopted. Date of separation used for adjustment purposes
PARTIES:	Carolyne Gaye Kennedy v Paul Robert Manns
FILE NUMBER(S):	SC 2973 of 2005
COUNSEL:	G. Brzostowski SC for plaintiff R. Harper for defendant
SOLICITORS:	Walsh & Blair for plaintiff Commins Hendriks for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 28 September 2006

2973 of 2005 Carolyne Gaye Kennedy v Paul Robert Manns

JUDGMENT

1 His Honour: This is an application for adjustment of property interests under section 20 of the Property Relationships Act 1984 (NSW). The parties had two children from their relationship and each party had children from a previous marriage.

Background facts

2 The plaintiff was born on 11 July 1954 and the defendant on 21 December 1954.

3 The plaintiff’s first child, by a prior marriage, Elizabeth Bevan, was born on 24 August 1973 and her second child, Robert Bevan, was born on 31 January 1975. Her third child, by a prior relationship, Michael Richard Kennedy, was born on 27 June 1989. On 23 March 1990 the plaintiff’s fourth child, David John Kennedy, was born.

4 On 12 October 1976 the defendant’s first child, by a prior marriage, Paula, was born. His second child, Melissa, was born on 24 April 1979.

5 In the early 1980s the defendant, with the assistance and tuition of his father, an experienced beekeeper, started his own beekeeping business while at the same time maintaining employment as a motor mechanic.

6 By 1985 the defendant had developed his beekeeping business to the extent that he then ceased working as an employed motor mechanic and commenced working full time, on a self employed basis, as a beekeeper.

7 In 1990 the defendant separated from his first wife Eva Manns. In late 1992 or early 1993 the defendant left his home at 116 William Street, Gundagai, which he co-owned with his former wife Eva Manns and commenced to reside in a rented property at 109 Hanley Street, Gundagai.

8 On 23 February 1992 or 1993 the parties’ relationship commenced with the defendant asking the plaintiff out on a date. The plaintiff, at that time, was living in rented Housing Commission premises in Sydney with her children. The plaintiff was working full time as an employee at Guilfoyle Beekeeping Equipment. The plaintiff was not receiving any child support or other financial assistance form the children’s father and that total lack of financial assistance from the children’s father continued thereafter.

9 At that time the defendant was living in Gundagai and engaged full time in operating and developing his beekeeping business.

10 In either December 1992 or mid 1993 the plaintiff resigned her employment and commenced an admitted de facto relationship with the defendant at the defendant’s property at 109 Hanley Street, Gundagai. The plaintiff’s two youngest children, Michael and David, then aged approximately 4 and 3, moved to Gundagai with the plaintiff and formed part of the household. The plaintiff’s two eldest children, Elizabeth and Robert, remained in Sydney and at the time were financially self-sufficient.

11 In 1995 the defendant’s father gave to the defendant a property comprising 10 acres known as Lot 130 Burra Road, Gundagai. Title to the property was registered in the defendant’s sole name.

12 On 3 March 1995 the first child of the relationship, Olivia Carolyne Kennedy-Manns, was born.

13 On 22 March 1995 the defendant and his first wife Eva Manns entered into consent orders formalising their marital property settlement. The defendant borrowed $40,000 to pay out his wife and meet his legal costs.

14 In early to mid 1999 the parties arranged for the construction of a home on Lot 130 Burra Road, Gundagai. The total cost of the construction was approximately $182,000. The construction costs were funded by way of a loan from the Commonwealth Bank in the sum of $140,000 which was secured by a mortgage against the property at Lot 130 Burra Road, Gundagai. The balance of the construction costs of approximately $42,000 was paid from monies accrued from the income of the beekeeping business

15 In June 1996 construction of the home on Lot 130 Burra Road, Gundagai, was completed and the parties commenced occupation of the home. Between mid 1996 and the present time the defendant met all repayments of the Commonwealth Bank loan of $140,000 from the proceeds of the business.

16 In September 1996 the defendant, on the advice of his accountant altered the structure of the beekeeping business from a sole trader to a company and incorporated the entity known as “Gundagai Bee Farms Pty Ltd”. Since incorporation the defendant has been the sole shareholder and sole office bearer of the company.

17 Between 1996 and 2002 various improvements were made to the home on Lot 130 Burra Road, Gundagai, including power, air-conditioning, water tank, carport and bore. The estimated cost of improvements since the home was completed in June 1996 is $100,000. The cost of those improvements was funded by the sale of honey supplies

18 On 3 May 1997 the second child of the relationship, Phillip Lesley Kennedy-Manns, was born.

19 In 1993 the plaintiff was made a signatory to the banking accounts for the business. Prior to that date the only signatory to the banking accounts of the business was the defendant

20 During 2001 the defendant’s mother gave the defendant a 20-acre property, being the property known as Lot 472 Burra Road, Gundagai. Following discussions between the defendant and his family concerning that gift, it was agreed that the defendant would pay to his mother $20,000 in consideration of the gift. An amount of $8,000 of that amount remains outstanding. The property at Lot 472 Burra Road, Gundagai, was registered in the defendant’s sole name.

21 In 2001 the defendant commenced construction of a shed on Lot 472 Burra Road, Gundagai. The purpose of the shed was to accommodate a larger and more modern extraction plant for the beekeeping business. The cost of construction of the shed was estimated at $200,000. The defendant obtained a loan from the Commonwealth Bank to fund the cost of construction of the shed. That loan was secured over both Lot 130 Burra Road and Lot 472 Burra Road, Gundagai.

22 On 17 June 2002 the parties separated. On separation, the plaintiff vacated the property at Lot 130 Burra Road with the four children, Michael, David, Olivia and Phillip. Between 17 June 2002 and 28 April 2003 the plaintiff did not work in any capacity in the business or have any involvement with the business

23 On 28 April 2003 the plaintiff and the four children, Michael, David, Olivia and Phillip returned to the home at Lot 130 Burra Road, Gundagai. The defendant remained in that home at the time and the plaintiff, the defendant and the children continued to occupy the same home, although the parties did not resume their relationship. The plaintiff did some work in the business during this period. They remained separated under the one roof until physical separation on 23 January 2004

24 On 23 January 2004 the defendant vacated the property at Lot 130 Burra Road. The plaintiff and the children continued to reside in that property and remain there to this date. On the same date the plaintiff ceased working in any capacity in the beekeeping business.

25 One of the few factual matters where the parties are at issue is the commencement date of the relationship. The plaintiff says that it was in December 1992 that she moved to Gundagai to live with the defendant, while the defendant maintains that this occurred in mid 1993. It is plain that the parties recollect that they first went out together in February. The defendant says it was February 1993 and the plaintiff February 1992.

26 The parties are agreed that the first time they went out was when the defendant drove to the plaintiff's workplace at St Mary's in Sydney. There were tendered the defendant’s truck driving records and these indicated that in both 1992 and 1993 there were visits to Sydney in February by the defendant. They therefore are not of assistance in resolving the dispute. The one mater that does resolve the dispute is some photographs of the plaintiff’s son David at his third birthday party.

27 David turned three in March 1993 and there are photographs in evidence of him sitting at his birthday party at the preschool with a cake in front of him having three candles. The preschool was in Gundagai. There is also a photograph of the defendant holding David at the time when the relationship first commenced in Gundagai. I accept the plaintiff's evidence of these background facts which are not contentious and this would seem to establish that the parties were residing together in Gundagai in March 1993. In these circumstances I accept that the relationship commenced in December 1992.

The property of the parties at the commencement of the relationship

28 At the commencement of the relationship the plaintiff owned a Holden Commodore station wagon worth $15,000, $1,000 in cash and personal effects. Her furniture was left in Sydney in her Housing Commission flat so that her two older children could use the furniture.

29 At the commencement of the relationship the defendant had:-

1. His beekeeping business, which at that stage had 1400 hives plus associated beekeeping equipment, which he estimated was worth $150,000.
2. A stockpile of honey which he estimated was worth $160,000.
3. 19,200 shares in Capilano honey Ltd.
4. Sundry assets including a car, truck and a Kenworth truck.
5. A one-third interest in a honey extraction plant.

30 At the time of the commencement of cohabitation, the defendant had not resolved the property affairs between himself and his former wife. In due course he retained his business and transferred his interest in the house to his former wife to resolve such property matters. In addition he paid her $30,000 and to do this he borrowed a sum of $40,000, which also covered his legal costs. Accordingly, at the commencement of the relationship, the assets, which I refer to above, must be reduced in value by this amount of $40,000.

31 There is a lack of evidence about the value of the defendant’s assets at the commencement of the relationship. So far as the trucks and the vehicles are concerned it appears that he estimated at the beginning of 1994 that his Holden car and international truck had a value of $7,000. His other truck, bobcat trailers and other vehicles were on hire purchase or lease finance and he owed $60,000 in respect of such vehicles. There is no evidence of their value. I will assume that such a vehicles did not have a value in excess of their payout figures.

32 At the start of the relationship the defendant had 1400 hives and in 1995 he suffered some losses in that 1000 of the hives lost their bees. It was for this reason that the plaintiff suggested that he should be considered to have had 400 hives of the commencement of the relationship. This is quite misleading because the actual physical hives remained and the cost to replace the bees was somewhere in the order of $9,000. In the circumstances I would accept that at the commencement of the relationship the defendant had 1400 hives. The parties ultimately compromised at the hearing before me that the value of the hives, of which there were 2546 at the hearing, was $146,855. This is a value of $57.68 per hive. Using this figure the value of the hives at the commencement was $80,752.95.

33 The Capilano shares were not valued at the commencement and their value per share in December 2005 was $3.50. Using this sum puts a value on the shares at $67,200.

34 There was debate before me as to the value of the stockpile of honey referred to by the defendant. The defendant was plainly referring to this at midyear, which was immediately after the main summer season when his holdings of honey would have been at their highest. However, this was not a permanent asset but was in fact nothing more than the stock on hand which he sold over the following 12 months to produce his income. For this reason the stockpile should be seen as nothing more than the source of the income which the parties had available to them in the year that they commenced their relationship.

35 The evidence is in an unsatisfactory state and I assume that the total of the defendant’s beekeeping business, including extraction plant and vehicles used in that business, was somewhere in the order of $150,000. In addition he had shares in Capilano Honey Ltd having a value of $67,200.

The property of the parties at the conclusion of the relationship

36 By the time the relationship concluded there were two new properties which had been acquired as gifts from the defendant’s parents to the defendant. On one property the parties built a home, into which they moved with the children and, on the other, the defendant erected a new treatment shed to accommodate the expanding beekeeping business.

37 As I have recorded, the defendant incorporated his business during the course of the relationship. The parties approached this case on the basis that they would not value the business in the usual way but instead would look at the value of the various assets held by the business, whether in the name of the company of which the defendant was the sole shareholder or in his own name. The evidence in the case was prepared with valuations of a number of assets as at July 2004, some six months after the conclusion of the relationship and also at a time in September 2005, when the parties were preparing for a hearing of the case in the District Court. There was no evidence tendered of the values of the relevant assets at the date of hearing apart from some agreed values.

38 Property at separation included honey and wax on hand. There was difficulty in valuing this and the parties did not tender valuations on this aspect but instead relied upon the cash situation at the conclusion of the summer season for 2003 to 2004 as indicating the extent of these assets. As the parties were endeavouring to determine the value of this asset at this time, it may be more appropriate in the circumstances to adopt values in the middle of 2004 and then allow an interest factor in respect of the period thereafter. See Kardos v Sarbutt [2006] NSWCA 11 at 97-99.

39 The plaintiff’s submission as to the parties assets at separation using 2005 values was as follows:

40 Using values at July 2004 the submissions would be in this form:

41 The titles used above refer to the party in whose possession the relevant property is held. It is to be remembered that the title to both pieces of real estate is in the name of the defendant. Apart from a minor difference in household chattels, the only dispute between the parties in respect of the relevant figures at separation was the extent of the cash on hand. The defendant had adopted the cash at bank at 30 June 2004, amounting to $68,812. This is in marked contrast to the plaintiff's approach of using the cash at separation of $165,419 together with payments received between then and 30 June 2004 of $284,990 making a total of $450,409.

42 Although some of the bank statements are in evidence, there does not appear to be any in evidence at the date of separation, namely, 23 January 2004. The plaintiff’s total is taken from the bank statement as at 31 January 2004. The payments referred to in the plaintiff’s schedule of 25 February, 29 March, 27 May and 28 June 2004 are all payments made by Capilano Honey, who are the main purchasers of the produce of the business. There is no evidence to enable me to determine for what sales these amounts were received, although it would be fair to assume that the payment received on 25 February would have related to the period when the plaintiff still had an involvement in the business, even though it was after the conclusion of the de facto relationship. It is to be remembered that she continued to work part of the time while the parties were living under the same roof, although separated, and such contributions should be taken into account.

43 The sum of $33,300 received on 13 May 2004 was a tax refund and presumably related to a period when both parties were involved in the business and it would be appropriate to take that into account. The figure of the defendant reflects the cash on hand at 30 June 2004, as shown in the company accounts. What those do not take into account is a number of substantial expenditures on equipment post separation, which equipment is not taken into account in the list of assets above. For instance $87,000 was paid for a second-hand truck and $24,620 was spent on modifications to the truck.

44 In assessing this aspect it is important to take into account the fact that the business continued and that there are many expenses of operating the business which continue to be charged. For example, by the time one gets to 28 February 2004 there is a balance in the account of $240,418.97. That takes into account the February payment from Capilano Honey and this indicates the extent of the expenditure incurred in running the business.

45 The taxation refund would refer to the period in which the plaintiff was involved in the business but I would think that the payments from Capilano Honey in March, May and June would relate to the period after the plaintiff's involvement. Accordingly, I propose to adopt that figure which reflects the cash at bank on 28 February, namely, $240,418 together with the tax refund of $33,300 which is a total figure of $273,718.
46 Adopting this figure the assets at separation are as follows:

Financial contributions

47 When the plaintiff joined the defendant at his home in Gundagai she worked in the business as well as looking after her children and later their own children. She did not draw any a wage but the defendant drew a notional wage of some $36,000 per annum. This was however adjusted at the end of the year and the account into which these monies were paid was accessible by the plaintiff who, after a few years, had access to the bank accounts in order to help the defendant with the officework and payment of accounts. The plaintiff did not have other outside paid employment but she did receive an allowance of $500 per fortnight from the Family Assistance Office and another $500 per fortnight through the Family Tax Benefit, which she contributed to the relationship. It was the business which otherwise supported the parties throughout the period of the relationship and allowed them to pay off mortgages, construct homes and otherwise expand their activities. It also had to meet the defendant’s child support obligations which, at the start of the relationship, were about $6,000 per annum.

48 The two main financial contributions to the parties’ assets were the properties that were given to the defendant during the course of the relationship. The defendant’s father gave the 10 acre block of land, being Lot 130 Burra Road, Gundagai, to him in 1995. The value as at that date was $35,000. The total cost of the construction of the house was approximately $182,000. The construction costs were partly funded by way of a loan from the Commonwealth Bank in the sum of $140,000, which was secured by way of a mortgage against the property at Lot 130 Burra Road, Gundagai. The balance of the construction costs of approximately $42,000 was paid from monies accrued from the income of the beekeeping business. Subsequent improvements were also funded in this way.

49 As I have mentioned, it was in 2001 that the defendant’s mother gave to the defendant a 20 acre property, being the property known as Lot 472 Burra Road, Gundagai. Following discussions between the defendant and his family concerning that gift, it was agreed that the defendant would pay to his mother $20,000 in consideration. Of that amount $8,000 remains outstanding. At the time the land was valued at $35,000. The plaintiff suggested that, because of the payment agreed to be made, the matter should be looked at as if the parties had purchased the land together for $20,000. This does not give sufficient recognition to the defendant's contribution. Plainly he has contributed $15,000. The two of them have, by making payments from the business in which they were both working, contributed towards the partial repayment of the $20,000.

Non financial contributions

50 The parties agree that, for the homemaking and parenting contributions, the plaintiff did 85% of these activities and the defendant did 15%. Initially there were two children involved and later the parties had two more children. The plaintiff continued to work in the business up until the day before the birth of her children and she returned to work almost immediately thereafter. There was some childcare assistance given by the defendant’s sister after the birth of the children. There were also short periods when the plaintiff’s other two children were living in the house and there was substantial involvement with childcare.

51 The parties agree that during the time the plaintiff was not looking after the children and involved in domestic work, she was working in the business. There is no doubt that she did work in the business and the dispute between the parties is a matter of emphasis and the actual extent to which the plaintiff contributed to the business.

52 The business involved collecting honey from the bees which included, from time to time, taking the hives to country areas and placing them in selected locations. The honey was collected and transported back to the plant at Gundagai where it was separated. This required handling of the hives and extraction of the honey.

53 The plaintiff would help with the hives close to the home and this was because of her responsibilities with the children. The defendant made the trips to collect the honey from the hives further away. The main season for the collection of honey was during the summer months as the bees hibernated in winter. This did not mean that the work stopped in winter because the hives needed to be maintained at this time. The parties appeared to work longer hours at the height of the season in summer and in winter they worked a normal working day.

54 The parties worked hard in the business with the defendant often working long hours. Although the plaintiff assisted when she was not looking after the children, she acquired her skills in the business from the defendant. The defendant, in turn, had acquired these skills from his father and as a result the business was successful during the period of the relationship. The business increased during the period of the relationship. This is apparent as it employed one person at the commencement of the relationship and at the end of the relationship it employed three beekeeping assistants and two casuals.

55 The plaintiff also attended to the bookkeeping and administration for the business. She kept the accounting records, stock records, prepared orders and completed the BAS statement for each quarter. This involved about 15 hours a week and often took place after the children had gone to bed.

56 I accept the parties’ assessment of the homemaking and parenting contributions which were reasonably substantial. So far as the contributions to the business were concerned the plaintiff’s contribution was not as great as that of the defendant. From a physical point of view the plaintiff was involved in other activities in the home and with the children, while the defendant spent more time than the plaintiff in the business. There was an additional element involving the defendant’s skills in the business which resulted in the increase in the business during the period of the relationship.

Claims of the parties

57 The plaintiff seeks a distribution which would reflect her receiving 46.2% of the assets and the defendant 53.8% of the assets. This order would require the defendant to transfer his interest in the former home, subject to the mortgage, and for the plaintiff to be paid $300,000. The plaintiff says that the defendant can have the contents of the home.

58 The defendant seeks orders that the plaintiff vacate the former home and make it available to the defendant, that the defendant cause Gundagai Bee Farms Pty Ltd to pay to the plaintiff $14,000 in discharge of the loan owing by the company to the plaintiff and that the defendant make a further payment to the plaintiff of $259,000.

59 The plaintiff suggests that because of the length of the relationship it is appropriate to approach the matter from a global perspective whereas the defendant suggests that an asset by asset approach is more appropriate. In Kardos v Sarbutt [2006] NSWCA 11 His Honour Mr Justice Brereton referred to the state of the authorities at paragraphs 51 to 53 in these terms:
“51 The legislation does not dictate the employment of any particular method in the formulation of an appropriate order for the adjustment under s 20 of property interests, and it is not desirable to attempt to formulate principles or guidelines designed to constrain judicial discretion within a predetermined framework [cf Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; (1986) 10 Fam LR 819; (1986) FLC 91-712 (Wilson and Dawson JJ). Although, in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law (Mason and Deane JJ). In Norbis, Mason and Deane JJ cited with approval observations of Nygh J in G & G (1984) Fam LR 969; (1984) FLC 91-582, to the effect that (at 79,697) it cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item, and (at 79,697) that while the Family Court was divided between those who favoured the so-called global approach and those who seek to achieve some degree of precision, both approaches were legitimate provided that those who take the global approach heed the warning that the origin and nature of the different assets ought to be considered, and that those who favour the more precise approach do not mistake the trees for the forest and add up their individual items without standing back at the end to review the overall result.
52 In Lenehan v Lenehan (1987) 11 Fam LR 615; (1987) FLC 91-814, the Full Court of the Family Court (Fogarty, Maxwell and Gun JJ) said:-
The judgments of the High Court in Norbis v. Norbis (1986) FLC 91-712 demonstrate the very wide discretion which a trial Judge has in the approach that he may adopt under s 79. In particular the judgments in that case discuss the “global'' and the “asset by asset'' approaches, and demonstrate that this is largely a matter for the trial Judge to determine in the exercise of his discretion. However Norbis' case is not a carte blanche to adopt either view irrespective of the circumstances of the individual case. There are cases where one approach or the other is clearly appropriate and a failure by the trial Judge to adopt that approach may demonstrate error. We think this is one such case. His Honour's initial approach of treating the parties' contributions to the home as separate from their contributions to the other (largely business) assets was, we think, a proper approach in the circumstances.
53 To this might be added that, in the necessarily inexact exercise involved in discretionary matrimonial property adjustment, judicial reasoning can be aided by the use in any case of more than one approach, so that one serves as a check method for the result reached by the other. “

60 When adopting a global approach careful consideration needs to be given to the extent of the initial contributions of the parties. At the commencement of the relationship the defendant brought his business and Capilano Honey shares having a total value of $217,200. In contrast, at the commencement of the relationship the plaintiff brought assets of $16,000. The defendant also had a liability of $40,000. The proportions contributed by the parties at the commencement of the relationship were 92% by the defendant and 8% by the plaintiff. By the time the parties separated the business, on my findings, had increased in value to $999,830. As this is a substantial increase, it would not be appropriate to consider the contributions in the same way as one might consider real estate which appreciates in value simply because of inflation. The increase in the value of the business was brought about by the hard work of both parties, as well as the defendant’s business skills. In these circumstances it would not be appropriate to give the defendant a proportion of the increase in the value of the business, simply based upon the disproportion of the contributions at the commencement of the relationship.

61 The defendant contributed $30,000 to the cost of the land for the home. Both parties made payments to the mortgage and funds from the business were used to construct the home. There has been an increase in the equity in the home of $180,000 which is reflected by the improvements made to the property. Although the defendant made the only contribution to the cost of the land, the parties jointly accepted the liability for the mortgage and made repayments which enabled the land to be held and increase in value.

62 The original contribution by the defendant to the shed property was $15,000 and the parties jointly contributed to the balance of $20,000. Once again the increase in the value of the land and improvements resulted in an increase in the equity to $123,744.

63 I have earlier referred to the defendant’s claim. He submits that a global assessment of the plaintiff’s contribution would fall within a range of between 24% and 34%. The defendant submits that anything more than 34% would not reflect the time value of his initial contributions and anything less than 24% may not do justice to the plaintiff’s contribution as a homemaker and a parent. For this reason, the defendant suggested that 27% was the appropriate proportion to be given to the plaintiff and that is reflected in the claim made by the defendant.

64 There is the superannuation which I have set out above. For many years the only case which gave guidance on the matter was Green v Robinson (1995) 36 NSWLR 96. Although there is some dispute about what the majority said, one view seems to be that comments of Powell JA and Cole JA were that there had to be demonstrated some factual matter which would enable one to form a view that there had been a contribution to a spouse’s superannuation entitlement. The matter was dealt with recently by the Court of Appeal in Chanter v Catts [2005] NSWCA 411. Bryson JA dealt with the matter at paragraphs 82 to 90 and his views were adopted by Hunt AJA and substantially agreed with by Hodgson JA. The views of Powell JA and Cole JA were rejected and the approach of Kirby P, who had dissented, was adopted. Accordingly, superannuation entitlements are not to be viewed as belonging to the parties separately but as financial resources of the parties which need to be adjusted, having regard to contributions “made directly or indirectly” by them. Normally the court will take a global view of the matter.

65 In this case it is appropriate that the parties retain their present superannuation. The sums are not large but there is a large disproportion between them. The source of the superannuation is the business in which they have both worked but contributed to in a disproportionate way to which I have earlier referred. In these circumstances the share the plaintiff receives will be slightly increased to reflect the parties retaining their superannuation.

66 Discussion in the cases suggests that it is sometimes helpful to check any assessment made on a global basis by giving some consideration to the matter on an asset by asset basis. The defendant's position was that the appropriate approach was on an asset by asset approach. He suggested that, when looking at the home block, the matter should be approached by looking at the land value in July 2004 of $100,000 and the improvements valued at $230,000. After allowing for liabilities, the net value of the land was $100,000 and the improvements $110,000. The defendant suggested a contribution by the plaintiff of 15% for the land and 50% for the improvements. The result of this arithmetic was that the plaintiff was entitled to $70,000 and the defendant $140,000.

67 In respect of the shed, the land is presently worth $50,000 ($8,000 remains owing to the defendant’s mother) and the improvements $250,000. The net value of the land is $42,000 and the improvements $73,744. The defendant's submission was that the plaintiff should be given no share of the land and 50% of the improvements. That however is inappropriate given that they have both contributed to the land by the repayment in part of the $20,000 to the defendant's mother. Assuming a 30% contribution to the land by the plaintiff and 50% share in respect of the improvements, one finds the plaintiff's entitlement at $49,472 and the defendant’s at $66,272.

68 The business is worth $999,830 and has debts of $108,780, giving it a net value of $891,050. Assuming a contribution by the plaintiff of 40% and the defendant 60%, the plaintiff's contribution would be $356,420 and the defendant’s contribution $534,630. Considering the matter in this way, the plaintiff's total is $475,892 and the defendant’s $740,902. The plaintiff's proportion is 39% and the defendant’s 61%. Such an approach does not take into account the homemaker contributions and parenting contributions of the plaintiff, which substantially outweigh those of the defendant. It also does not take account of the assets introduced by the defendant to the relationship at the commencement. This is particularly so in respect of the business. There also needs to be an adjustment for superannuation.

69 The furniture has a net value of $25,972.

70 Taking into account all matters and taking a global view of the matter, I find an appropriate division is that the plaintiff should receive 40% of the present assets, excluding superannuation, which amounts to a value of $497,106.40. The plaintiff and the defendant both wished to retain the house. The plaintiff because she is presently living there with the children and the defendant because it is close to where he works. However, I think it is more appropriate that the plaintiff have it as a family home.

71 The plaintiff suggested that she did not want the furniture but I think it is appropriate that the furniture remain in the home she occupies with the children.

72 On the basis of the plaintiff having 40% of the net assets, an appropriate adjustment is a payment by the defendant to the plaintiff of $261,134.40. This adjustment is on the basis that the plaintiff retains the house and furniture and that she takes over the mortgage on the house of $120,000. To this adjustment should be added interest at Supreme Court rates since July 2004.

73 I direct the parties to bring in short minutes.
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