L and L - [2000] FMCAfam 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2000] FMCA fam 34

ADJUSTMENT OF PROPERTY AND SPOUSAL MAINTENANCE s79(4) s75(2)

Applicant:

B C L

Respondent:

L J L

File No:

ZP264 of 2000

Delivered on:

14 September 2000

Delivered at:

Parramatta

Hearing Date:

5 September 2000

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Kearney

Solicitors for the Applicant:

Cluff & Sant, Solicitors,
DX 28393, Parramatta

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Thomson Bentley & Partners, Solicitors,
DX 604 Sydney

ORDERS

That within three calender months of the date of these orders the Wife pay to the Husband $21,012.20.
That simultaneously with the payment made pursuant to Order 1 of these orders the Husband give to the wife a duly executed Memorandum of Transfer and transfer to her the whole of his right title and interest in the property situate at and known as 12 K Street P.
That upon provision of the transfer the Wife does all things necessary to obtain for and provide to the Husband a discharge of his liability due to the ANZ Bank pursuant to the mortgage registered on the title of the property.
In the event that the Wife fails to make the payment due to the Husband pursuant to Order 1 of these orders, that the Husband and Wife do all such acts and things and execute all such documents as may be necessary to cause the property situate at 12 K Street, P to be sold for the best available price and the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission;
(b)Payment of legal costs in respect of sale;
(c)Discharge of the mortgage secured over the property to ANZ Bank Limited;
(d)The nett proceeds shall be divided as to 86.25% to the Wife and 13.75% to the Husband.
Other than as provided in these orders, it is declared that the Husband and the Wife each have the sole right, title and interest in:
(a)Any chattels, goods, furnishings, and other property which are in their possession respectively;
(b)Any moneys, shares, debentures and superannuation entitlements in their possession or sole entitlement.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 84, to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument.
That after twenty-eight days, all Exhibits be returned.
That all documents produced on subpoena be collected by the Solicitor who issued the subpoena and returned to the owner thereof as soon as possible.
That the Application for Spousal Maintenance filed by the Wife on
9 May 2000 is withdrawn.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 264 of 2000

B C L

Applicant

And

L J L

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings are for financial orders, being the adjustment of property and spousal maintenance.

The applications

B C L (“the Wife”) filed an Application for Spouse Maintenance on

9 May 2000. The next day she filed an Application for Property Orders. Her applications were filed in the Family Court at Parramatta. At the conclusion of the hearing, the Wife abandoned her application for maintenance. Thus, she sought the orders set out in her application of 10 May 2000. The effect of her application is for the Husband to transfer to her his interest in the matrimonial home at

12 K Street, P (“P”) and pay her the sum of $50,000.00 by way of alteration of property. Finally, she seeks that each party be declared the sole owner of all property currently in each party’s respective possession and control.
L J L (“the Husband”) filed a Response to the Application for Property Orders on 29 June 2000 and a Response to the Application for Spousal Maintenance on 2 June 2000. By way of property settlement, the Husband sought the sale of the former matrimonial home, payment of expenses associated with the sale, discharge of the mortgage and payment of debts due to Grace Bros, ANZ Visa card, and a personal loan in the sole name of the Husband. Thereafter, the proceeds of sale to be distributed as to 60% to the Wife and 40% to the Husband. He also seeks orders for the equal division of the contents of P and subject to these prior orders, that each party is declared the sole owner of all property currently in their respective possession and control.
On 11 July 2000, the proceedings were transferred to the Federal Magistrate’s Court for hearing.

Relevant facts

The Husband was born on 27 February 1961 and is now aged 39 years. The Wife was born on 16 April 1965 and is now aged 35 years. They married on 28 October 1999. The parties did not reside together prior to marriage.
On 1 September 1999, the parties separated, when the Husband left the matrimonial home.
There are two children of the marriage; B J L born 9 September 1994 now aged 6 years and C L L born 2 March 2000. Subsequent to separation, the Wife and B have continued to reside in the matrimonial home as has C following her birth.
The marriage still subsists.
When they married, neither party had any assets of significance. They each owned a motor vehicle and both were in employment. The Husband was employed with State Rail, now known as Rail Services Australia and has been since 1980. He is still employed by Rail Services Australia. The Wife was working for F Shoes as a Sales Assistant.
Upon marriage and until late 1991, the parties resided in a granny flat located at the rear of the Wife’s mother’s property at 5 N Parade, G (“G”). The parties contributed to approximately one half of the total costs of services and outgoings that arose during this period of occupation. Additionally, the Husband alleges that they paid rent in the sum of $50.00 per week, which assertion is denied by the Wife. I am satisfied that the wife made the primary financial arrangements with her mother and on this issue accept the wife’s evidence.
In September 1991, the Wife negotiated the purchase of the G property from her mother. The value of the property at that time was $100,000.00. The parties borrowed $65,000.00 from the ANZ Bank to fund this venture. The loan moneys were allocated as follows:
a)$50,000.00 paid to the Wife’s mother, Mrs D M S;
b)$3,451.52 to Westpac Bank discharging Mrs S’s mortgage secured against the property;
c)$1,497.00 being legal fees associated with the purchase and mortgage;
d)The balance of the moneys raised from ANZ were applied to improvements to the G property, which included purchase and installation of a new kitchen, replacement of lino flooring, purchase of carpet, furniture and extensions.
Thus, the G property was transferred to the parties for $46,548.48 below its market value.
Upon completion of the transfer of the property, the parties moved into the main house and Mrs S moved into the granny flat previously occupied by the parties. Mrs S was frail, suffered from a heart condition and developed ulcers on her leg. She and the Wife had a close relationship and the parties assisted her until she could no longer live independently and moved into a nursing home in approximately 1996. I accept the Wife’s evidence that she was primarily responsible for the care of her mother and contributed to her care to a greater extent than did the Husband.
In about August 1994 the Wife stopped work just prior to B’s birth. For the next twelve months the Husbands income was the family’s only source of income. The Wife returned to work on a part-time basis in about September 1995, earning about $250.00 nett per week.
On 6 July 1995, Mrs S made her final Will the essential effect of which, after identified gifts, was to leave the majority of her estate to the Wife’s brother. The absence of a significant distribution to the Wife was explained by Mrs S in the final clause of the Will thus, “I have not provided for a larger portion of my estate to my daughter the said B C L as during my lifetime, I transferred to my said daughter and her Husband the property known as 5 N Parade, G for less than its value”.
Mrs S did not pay rent during the time she occupied the granny flat. The granny flat remaining vacant after Mrs S moved into the nursing home until the G property was sold by parties in about July 1997.
The G property was sold for $149,000.00. An amount of $135,615.00 was paid to the ANZ Bank. This payment discharged two borrowings. The parties agree that $45,000.00 was applied to discharge the mortgage to the ANZ Bank, which funded the purchase of the G property. The second debt related to the purchase of a block of land at 12 K Street, P. The purchase price was $86,000.00. Neither party explained the difference between these two amounts and the sum paid to the bank.
The parties then borrowed $100,000.00 from the ANZ Bank, which was applied to the cost of the erection of their home on the land at P. The small amount of moneys remaining from the sale of G and some unquantified amounts from the Husband were expended on improvements to complete the home. The parties established gardens, laid turf and worked to prepare the property for occupation.
Subsequent to the sale of G and prior to moving into P, they resided with the Husband’s parents, a period of approximately eighteen weeks. They did not pay rent for the use of the self contained flat.
In 1996, the Wife traded in the vehicle she had owned at the time of marriage and purchased a second hand Toyota Camry for $12,900.00. She received about $3,000.00 trade in for her Gemini. In their case outline documents, the parties disclose agreement that Mrs S gave the Wife $10,000.00 as a gift to contribute to the cost of this car.
In 1997 the Husband traded in his Torana and received a trade in allowance of $2,500.00. He borrowed $8,400.00 from Encompass Credit Union. These amounts made up the purchase price of the commodore. The Husband has made all payments towards this loan.
Both the Toyota and Commodore were traded in for a 1993 Toyota Lexcen in 1998. The Encompass Credit Union borrowing’s were extended and have been maintained by the Husband.
After separation and prior to C’s birth the Husband was assessed to pay child support of $540.00 each month. In lieu of child support the paries agreed that the Husband would pay the mortgage repayments at $640.00 per month. After C’s birth the child support assessment increased to $790.00per month. On 6 June 2000 orders were entered in the Family Court that required payment by the Husband of his child support liability and the wife to make mortgage payments.
In February 2000 the parties effected a partial property settlement. The Wife transferred the Toyota Lexcen to the Husband and he paid her $6,000.00. This sum was borrowed by the Husband from Encompass Credit Union. The parties agree that no further adjustment should made as a consequence of this transaction. The Wife used the $6,000.00 and a loan of $1,500.00 from Avco to buy a Hyundai Excel.
In December 1999 the Husband borrowed monies to fund a holiday to Tasmania. I agree with Mr Kearney’s submission that in the circumstances of this case those borrowing’s should be notionally added back in to the available assets.
In May 2000 the Husband took out nett $2,000.00 from his long service leave entitlements. This money was used to pay rental arrears and reimburse Ms W for the advance that met the costs of DNA testing C and the Husband. I do not add back this money.

Relevant law

The approach to the determination of an application under Section

79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595) the process ordinarily involves a three part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c). Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant.
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)].
When the proceedings include an application for spousal maintenance, there is in effect a fourth step. The determination of any spousal maintenance application takes place after the section 79 application has been completed. The completion of the section 79 application establishes the context against which section 72 applies. Namely, the financial circumstances of the parties. The evaluation of the matters referred to in section 75(2) in a property order is not an exercise of the section 74 maintenance power. Importantly, it is not an alternate method for obtaining spousal maintenance. Thus in these proceedings, the Wife withdrew her spouse maintenance application at the conclusion of the proceedings, in circumstances where she properly conceded that the Husband’s financial circumstances were such that he could not reasonably contribute to her identified need for support. The withdrawal of the spousal maintenance application in these circumstances does not entitle the court to increase in the section
79 exercise the entitlement as a consequence of the section 75(2) stage three processes.

Assets at the date of marriage

The parties are in agreement as to the assets at the date of the marriage. They each had a motor vehicle and otherwise no assets of value.

Assets at the date of hearing

The parties reached agreement as to the value of some assets.
They were in agreement as to the quantum of some liabilities.
It is common ground that the Husband has accrued long service leave of $10,083.26 as at the date of the hearing, pre-tax. The parties disagree as to the nature of that entitlement. Counsel for the Husband submitted that this entitlement comprised a financial resource whilst Counsel for the Wife asserted that those entitlements constituted property to be included in the calculation of the assets available for distribution. Exhibit ‘RH2’ evidences that in May 2000, the Husband took 165.23 long service leave units that had a pre-tax value of $3,704.88 and after tax value of approximately $2,000.00. It was the Husband’s evidence that this payment was made by his employer without the Husband taking leave from his employment. The Husband’s evidence in relation to his long service leave was unsatisfactory. He did not include the details of his long service leave in his Statement of Financial Circumstances and the drawing down of long service leave was not disclosed in his affidavit evidence or evidence in chief. Order 17 rule 3 required his disclosure of this transaction.
Counsel for the Wife submitted that the drawing down of these entitlements by the Husband indicated a long service leave entitlement that was unusual. It was submitted that the May 2000 transaction entitled the court to conclude that the Husband could take up the balance of his long service leave without either taking leave or a terminating his employment. Thus the entitlement should be viewed as a chose in action hence “property in his hands”.
The Full Court of the Family Court recently considered the nature of long service leave entitlements in Tomasetti and Tomasetti (2000) FLC 93-023. There the Full Court analyses the earlier decision of Gould and Gould (1996) FLC 92-657. In Gould’s case, the issue was whether the accrued leave entitlement could be treated as a financial resource which the Full Court was satisfied it could be. In Tomasetti, as in these proceedings, it was not disputed that the leave entitlement could be taken into account as a financial resource. The issue was whether the court should go further, as Counsel for the Wife here submits, and treat it as property. The relevant statement of the Full Court in Tomasetti (at 87,381) was “whilst the Full Court (in Gould) did not endorse that approach, we think that an inability to enforce payment in lieu of the accrued leave [except in case of retirement] would militate against a conclusion that such an entitlement, held by a person who has not reached retirement age, could constitute ‘property’ as defined in Section 4(1) of the Act”.
The Long Service Leave Act (NSW) 1955 governs the entitlement to long service leave. The Husband lives and works in NSW and is employed by a NSW government agency and I am satisfied that this legislation determines his entitlements. Relevantly section 8 provides “ Except as provided in subsection (5), payment shall not be made by an employer to a worker in lieu of any long service leave or part thereof to which the worker is entitled under this Act nor shall any such payment be accepted by the worker.” Subsection 5 relates to termination of employment other than by death.
How the Husband came to take up a portion of his long service leave entitlement was not explained in evidence before me. I am not satisfied, however, that as a consequence of that transaction I can conclude that the Husband can receive the monetary value of the balance of his entitlement other than by death or resignation.
I am not persuaded that I should conclude that the long service leave entitlement could be treated as property. It is, however, a financial resource to be taken into account in assessing the impact of the section 75(2) factors.
Next, it was submitted by Mr Kearney that the Husband’s unpreserved portion of his superannuation, details of which are contained in ‘AW1’ and ‘AW3’ should be treated as property rather than, as submitted by Counsel for the Husband, a financial resource. This fund, Mr Kearney submitted, is an accumulation fund and the court should be aware of the Family Law Legislation Amendment (Superannuation) Bill 2000. Counsel agreed that it would not be appropriate to adjourn the proceedings pursuant to section 79(5). A concession properly made having regard to the recent Full Court of the Family Court’s decision in Van Essen and Van Essen (2000) FLC 93-028. I cannot agree with Counsel for the Wife’s submission that the non-preserved superannuation entitlement could be treated as property and find that the entitlement is a financial resource of the Husband.
Finally, there is the unsatisfactory nature of the evidence relating to furniture and contents. Both parties addressed this issue in their Statements of Financial Circumstances. Neither party was cross-examined, nor was there any valuation evidence placed before the court. Importantly, their affidavits are silent as to the manner in which the parties dealt with furniture and contents at separation.
The effect of the orders sought by the Husband is to claim one half of the furniture located in the P property. The Wife would have the parties retain that which is currently in their possession. Neither Counsel submitted that there ought to be a sale or that a “pick-a-box” scheme for distribution of the unidentified property is appropriate. The parties are not in substantial disagreement as to the value of furniture. The Husband asserts the total value of $12,000.00 of which he claims a 50% share. The Wife asserts a value of $11,000.00 and alleges that the Husband has $6,000.00 thereof in his possession.
The issue, therefore, is not the value of the furniture but how it should be adjusted. I cannot, on the evidence, come to any conclusion about which party has furniture of which value. Had the furniture been identified, even in general terms, I would have considered a pick-a-box distribution in accordance with the general percentage determination. An order for the sale of the unidentified property is similarly inappropriate. These parties have modest means and modest futures. Selling such furniture as they have acquired would have a negative impact once they incurred the expense of re-establishing their respective households. Thus, I will not attribute to either party a value of the furniture and contents that party may have in their possession.

The credit card, Grace Brothers and Encompass loans are liabilities that are deducted to determine the parties’ net property.
I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table.
a)Assets :
i)12 K Street, P (agreed value).............................. $250,000.00
ii)Wife’s Hyundai motor vehicle (agreed value)......... $6,000.00
iii)Husband’s Lexcen vehicle (agreed value)............ $10,000.00
iv)Wife’s personalty (jewellery) (agreed value)........... $1,000.00
v)Husband’s personalty (agreed)................................... $250.00
vi)Furniture and contents............................................. $11-12,000
vii)Add back Tasmanian holiday borrowing ............... $2,500.00
viii)Husband’s bank account................................................ $44.00
ix)Wife’s bank account (agreed)........................................ $60.00
x)TOTAL ASSETS excluding furniture............. $269,854.00
b)Liabilities :
i)
Mortgage to ANZ (agreed)..................................... $97,000.00

(secured over P property)
ii)Husband’s ANZ Visa card........................................ $1,023.00
iii)Husband’s Grace Bros card..................................... $1,300.00
iv)Husband’s Encompass car and personal loan..... $12,000.00
v)Wife’s AVCO loan...................................................... $2,000.00
vi)TOTAL LIABILITIES............................................ $113,323.00
c)TOTAL NET ASSETS.................................................. $156,531.00
d)Financial resources :
i)REFT Superannuation Fund (Wife).......................... $7,216.00
ii)Long service leave (Husband)................................ $10,083.26
iii)SASS Superannuation (Husband)......................... $43,570.19
iv)Husband’s accumulated annual leave .................... $2,080.75

Contribution — section 79(4)

As set out in paragraph 9 neither party owned assets of significance at the date of marriage and their initial contributions were of equivalent value.
Both parties were in full time employment, until the Wife in August 1994 stopped work about four weeks prior to the birth of the parties’ child, B. After taking a year unpaid maternity leave, the Wife returned to work in September 1995, working 25 hours a week with Fricker Shoes. The Husband was in full time employment throughout the course of the marriage and earned significantly more than the Wife. The parties retained separate bank accounts. I am satisfied that both parties applied the entirety of their incomes to the betterment of the family. As is not uncommon, each took responsibility for payment of specific expenses.
The periods of rent free accommodation provided by each parties parents is a financial contribution made to the marriage on behalf of the relevant party. The period provided by Mrs S was significantly greater than that provided by the Husbands parents and thus the Wife’s contribution by way of rent free accommodation is greater than the Husband’s.
The Wife made two significant direct financial contributions to the assets of the marriage, namely the gift of approximately half the value of G in 1991 and the $10,000.00 gift received from Mrs S in 1996.
The principle matter in dispute between the parties in respect of their competing property claims was the manner in which the 1991 acquisition of G should be evaluated. It was a significant injection of capital early in the marriage and pivotal to the subsequent capital gain that the parties achieved from G and the P property. Counsel for the Husband submitted that the value of this contribution was eroded for two reasons. Firstly, Mrs S remained in residence, living in the granny flat. Thus, she retained a continuing benefit. This fact, does not, however diminish the value of the contribution. Secondly, her continuing residence deprived the parties of the opportunity to earn rental income. I do not accept this argument as once she had vacated the granny flat, the parties did not rent the granny flat and I am not satisfied that for this reason the value of the contribution should be reduced. The direct financial contribution made to the acquisition of G is substantial and has a greater significance than its dollar value. This is because it is the transaction from which the capital gains from which the parties have derived greatest benefit.
It was not submitted by Counsel for the Husband that the 1996 $10,000.00 gift should be given anything other than its full value.
The Wife’s direct financial contributions significantly exceed the Husband’s when evaluated comparatively.
Both parties contributed to the maintenance and improvement of the G property. The Wife, I am satisfied, carried out the majority of the home-maker duties. The Husband paid the fixed outgoings, mortgage payments, council rates, water rates, electricity and telephone. $10,000.00 of the moneys raised by mortgage from the ANZ Bank at the time of purchase of G was applied to the installation of a new kitchen, flooring, furniture and extensions to the property. When sold in July 1997, the parties made a capital gain of approximately $104,000.00. Whilst the maintenance and improvements made to the property contributed to that capital gain, the significant factor was the gift by Mrs S.
The parties expended approximately $186,000.00 in the purchase of the P property. Together they established gardens and completed the home that was built for them. The value of the home has increased and has an agreed value of $250,000.00. In the three years since raising finance to build the P home the parties have only managed to reduce the mortgage to the ANZ Bank by $3,000.00 to $97,000.00.
Overall, I am satisfied that the parties’ non-financial contributions throughout the course of the marriage were equal. Both worked to improve their properties, the Wife’s contribution to the welfare of the family, particularly her contribution as home-maker and parent was greater than that of the Husband, particularly during the time that she was on maternity leave, and working part-time. The Husband maintained the gardens and exterior of the property.
I accept Counsel for the Wife’s submission that the Wife’s post separation contribution as home-maker and parent has been substantially greater than the Husband’s has. Although paying child support in an amount for some time greater than his assessed liability, payments have been late, a fact that makes more onerous the Wife’s capacity to meet the needs of the children. The Husband has elected to refuse a relationship with C, which makes the Wife solely responsible, in fact not law, for the welfare of their daughter.
The orders I propose will not effect the earning capacity of either party.
I find, therefore, that the parties’ total contribution should be assessed as being 65% as by the Wife and 35% by the Husband.

Section 75(2) factors

(a) The Husband was 39 years at the date of the hearing. He is in good health. The Wife is presently aged 35 years and is in good health. I make no adjustment pursuant to this sub-section.
b)The Husband is in full-time employment as a Senior Foreman with Rail Services Australia. The Husband’s evidence is that he is securely employed and he denied that he was facing redundancy. Exhibit ‘RF1’ corroborates this. He receives an annual salary of $44,306.00. The Wife is not employed in the paid workforce. Her income is derived from Social Security payments and child support. She intends to return to part-time work in about six months time when C is approximately one year old. She hopes to return to her former employment and I am satisfied that her income will be significantly less than that earned by the Husband. The Husband’s superannuation entitlement substantially exceeds the Wife’s and her has the long service leave and annual leave entitlement in relation to which I have already made findings. It is appropriate to make an adjustment in the Wife’s favour pursuant to this sub-section.
c)B and C will continue to live with the Wife. C is a baby and the Wife will have primary responsibility for the care of one or both children for at least the next seventeen years. The Husband wishes to have no relationship with C and exercises regular contact to B. I find that this sub-section requires an adjustment in the Wife’s favour.
d)Both parties have a duty to maintain the two children of the marriage. Each has the commitments identified in their statements of financial circumstances. These commitments are modest and will only enable each to have a modest standard of living. The Wife’s commitments exceed the Husband’s as a consequence of her care of the two children. It is appropriate to make an adjustment in the Wife’s favour pursuant to this subsection.
e)Other than the children neither party has a responsibility to support any other person. I make no adjustment under this subsection.
f)The Wife is in receipt of an income tested Department of Social Security pension benefit. This entitlement arises as a consequence of her single status and care of the children. This entitlement will reduce or cease when the Wife returns to the paid workforce. The Husband has a substantial superannuation entitlement which will not be payable for approximately 20 years. Its current value to the Husband should be reduced. On balance it is appropriate to make an adjustment in favour of the Wife pursuant to this subsection.
g)The parties have enjoyed a modest standard of living. Neither will enjoy the same standard of living in the short term. I make no adjustment under this subsection.
h)I find no relevant factors under this subsection which require adjustment.
i)I find no relevant factors under this subsection which require adjustment.
j)The parties’ cohabitation was of ten years duration. Throughout the marriage, the Husband maintained employment with the same employer. The Wife has maintained her employment skills and I make no adjustment under this subsection.
k)The Wife’s evidence, which I accept, is that she will return to work on a part-time basis. As a consequence of her desire to care for the children, I find that the Wife’s care of the children will affect her earning capacity for at least five years, when C will be ready to start school. Her intention is to work part-time and to parent the children when not otherwise in paid employment. I make an adjustment under this subsection in favour of the Wife.
l)The Husband is sharing rented premises with Ms T W. They have a sexual relationship, have taken a holiday together and she loaned him the funds to enable DNA testing of C to be carried out. Although an intimate relationship I am satisfied that the relationship is properly described as flatmates. The Wife has an intimate and close relationship with Mr T L. He stays regularly at the Wife’s home but lives with his sister. Whilst these respective relationships are personally important to the parties I am satisfied that the relationships have no relevant financial consequences. I make no adjustment pursuant to this subsection.
m)The Orders I make will give the opportunity to the Wife to purchase the Husband’s interest in the former matrimonial home. She will carry significant borrowing’s, already approved in principle by her bank. The Husband will have fewer assets but an income that may enable him to borrow and re-enter the property market. Neither will have assets that will enable them to derive income and both will remain for the foreseeable future in modest financial circumstances. I make no adjustment pursuant to this subsection.
n)The Husband will pay a significant percentage of his salary to the Wife by way of child support. This liability will continue for at least the next 17 years. He has paid child support in an amount slightly greater than the assessed amount most of the post separation period. Payments have occasionally been late. I make no adjustment pursuant to this subparagraph.
na)No additional factors arise.
Having regard to all of the Section 75(2) factors, I find it is appropriate that there should be a further adjustment in the Wife’s favour having regard to sub-paragraphs (b), (c), (d), (f) and (l). The appropriate adjustment to be made in the Wife’s favour is 15%.

Conclusions

I find following the parties’ 10 years cohabitation that their contributions throughout the cohabitation were 65% in favour of the Wife and 35% by the Husband. The Wife will have the primary ongoing responsibility for the care of the children who are young. This responsibility will impinge on her ability to participate in the full-time workforce for some years to come. Balancing these factors, I find that it is appropriate that the parties’ net assets should be divided as to 80% to the Wife and 20% to the Husband.
The husband will have the benefit of his financial resources which outweigh those the Wife will retain. The Husbands future income compared with the Wife’s future income and responsibilities give him a more financially secure future. That the outcome of the application of section 79(4) and section 75(2) has resulted in a distribution favourable to the Wife 80% as to the Husband’s 20% I am satisfied is just and equitable within the meaning of section 79(2). The reason for that is that the section 79 exercise requires that I give proper weight to the Wife’s contribution to the acquisition of G and her financial future having regard to her parenting of the children.
The Wife seeks the opportunity to remain in the matrimonial home. The Orders I make will give her the opportunity to pay out the Husband’s interest in the matrimonial home failing which the property will be sold. Each party will retain the motor vehicle in their possession. The parties agree that there should be no further adjustment in relation to the motor vehicle beyond that which they implemented in February 2000. Otherwise they will each will retain the property in their possession and the financial resources to which they have entitlement.
Thus the Wife will receive $125,224.80 of the net assets. She currently has assets valued at $7060.00 and so shall take $118,164.80 for her interest in the former matrimonial home.
Accordingly, I make the following Orders:
(1)That within three calender months of the date of these orders the Wife pay to the Husband $21,012.20.
(2)
That simultaneously with the payment made pursuant to Order

1 of these orders the Husband give to the wife a duly executed Memorandum of Transfer and transfer to her the whole of his right title and interest in the property situate at and known as

12 K Street P.
(3)That upon provision of the transfer the Wife does all things necessary to obtain for and provide to the Husband a discharge of his liability due to the ANZ Bank pursuant to the mortgage registered on the title of the property.
(4)In the event that the Wife fails to make the payment due to the Husband pursuant to Order 1 of these orders, that the Husband and Wife do all such acts and things and execute all such documents as may be necessary to cause the property situate at 12 K Street, P to be sold for the best available price and the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission;
(b)Payment of legal costs in respect of sale;
(c)Discharge of the mortgage secured over the property to ANZ Bank Limited;
(d)The nett proceeds shall be divided as to 86.25% to the Wife and 13.75% to the Husband.
(5)Other than as provided in these orders, it is declared that the Husband and the Wife each have the sole right, title and interest in:
(a)Any chattels, goods, furnishings, and other property which are in their possession respectively;
(b)Any moneys, shares, debentures and superannuation entitlements in their possession or sole entitlement.
(6)That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 84, to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument.
(7)That after twenty-eight days, all Exhibits be returned.
(8)That all documents produced on subpoena be collected by the Solicitor who issued the subpoena and returned to the owner thereof as soon as possible.
(9)That the Application for Spousal Maintenance filed by the Wife on 9 May 2000 is withdrawn.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: