Lau and Ji

[2009] FamCA 941

FAMILY COURT OF AUSTRALIA

LAU & JI [2009] FamCA 941

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth) ss 75(2), 79

Lee Steere and Lee Steere (1985) FLC 91-626;
Ferraro and Ferraro (1993) FLC 92-335;
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355;
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693

APPLICANT: Ms Lau

RESPONDENT: Mr Ji

FILE NUMBER: SYC 3999 of 2007

DATE DELIVERED: 1 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 22, 23 & 24 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moss

SOLICITOR FOR THE APPLICANT: Shepherds The Family Law Specialists

COUNSEL FOR THE RESPONDENT: Mr Morahan

SOLICITOR FOR THE RESPONDENT: Zhang Shijing Lawyers

Orders

1. That within 42 days the wife pay to the husband the sum of $113 697.

2. That upon the wife’s compliance with the above order the husband shall forthwith do all things and sign all documents necessary to transfer to the wife his interest in the property known as W property, New South Wales and the wife shall discharge the mortgage thereon.

3. That in the event that the wife fails to comply with order 1 above the husband and wife shall forthwith do all things and sign all documents necessary to cause the W property to be sold for the best price reasonably able to be obtained and the sale proceeds shall be paid as follows:

   (i)The costs, expenses and commission of the real estate agent and legal costs of the sale;

   (ii)to discharge the mortgage and

   (iii)to pay 58.91 percent of the balance to the husband and 41.09 percent thereof to the wife.

4. That otherwise each party is declared the sole owner of all other property in their possession and/or control respectively including superannuation.

5. That in the event that either party refuses or neglects to sign any document necessary to give effect to these orders the registrars of this Registry shall be appointed to execute such document in the name of that party and to do all acts and things necessary to give validity and operation to the document.

6. That all exhibits be released.

7. That both parties have leave to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

8. That the above orders not commence operation until 20 October 2009.

9. That both parties have leave to re-list these proceedings for the purpose only of further submissions about the form of the orders at any time until 19 October 2009.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6486 of 2008

MS LAU

Applicant

And

MR JI

Respondent

REASONS FOR JUDGMENT

Introduction and applications

1. The parties are Ms Lau and Mr Ji.  For convenience I shall refer to them as “the wife” and “the husband” respectively. 

2. The wife is seeking orders to the following effect:

   ·That the husband transfer to her his interest in the property known as Unit W property, New South Wales;

   ·That the wife indemnify the husband in respect of the mortgage thereon;

   ·That otherwise each party be solely entitled to all other property in their possession and / or control respectively including superannuation.

3. On the other hand the husband seeks orders to the following effect:

   ·That the wife pay to him $95 000 in respect of the W property. $110 000 in respect of the S property and $18 000 in respect of the superannuation which is held by the wife;

   ·That the parties retain the right and title to all monies and chattels presently in their possession.

Background

1. The husband was born in 1956 in China.  The wife was born in 1961 also in China. The parties married in 1994 and separated in 2000.  There are no children of the marriage. 

2. At the time of marriage the wife’s property consisted of a one-half interest as tenant in common in the property at S, New South Wales, the other half interest being owned by her father, savings of $30 000 and some personal property. This property was rented out during the entirety of the parties’ marriage. The proceeds were deposited to a joint account of the wife and her father. The wife also owned some shares in Challenger and Croesus and she had savings of approximately $30 000.

3. The wife was also trustee of a property at C following the death of her brother in 1992.

4. At this time the wife was working as a packer at a Sydney warehouse earning income of $360 per week.

5. On the other hand at the time of marriage the husband did not have any assets of significant value. He had been living in China and had been unemployed for 3 years. He had borrowed two loans from his sister, one for $13 000 and one for $21 000.  The husband used $3000 of this money to pay for the wedding.

6. On the wedding day the wife asked the husband for $10 000.  After his initial reluctance to pay the wife this money he eventually decided to do so and gave her $10 000.  The husband also signed a handwritten document acknowledging that he was not entitled to any share of the wife’s assets held by her prior to marriage and for provision of regular payments of money to her parents by the parties.

7. Upon their marriage the parties lived in a rented unit at P, New South Wales.  The husband was working in the arts in Sydney and in Brisbane.

8. In approximately October 1997 the parties purchased a home unit at W, New South Wales for $175 000 in joint names as an investment property.  This was funded by $30 000 from the husband’s savings, $30 000 from the wife’s savings and they borrowed $115 000.  The husband paid approximately $5000 for the stamp duty.  This property was then rented out.

9. At approximately this time the parties moved and commenced living with the wife’s parents in a home unit owned by the wife’s sister at R rent-free.

10. In approximately 1998 the wife acquired some shares in Suncorp.

11. The parties moved to Perth in September 1999.  They lived in a rented property.  The husband worked in the arts.  The wife worked at a store.  The husband says that the wife earned approximately $15 000 in total from the store. 

12. Upon the parties’ separation in 2000 the wife returned to Sydney.  The husband paid for her air ticket.  The husband continued to live in Perth.  The husband says that at the time of separation he had approximately $34 000 in his account with Citibank.  He says that he transferred $13 000 to his sister to repay one of the loans from her.  The husband says that he transferred a total of $29 350 to his sister and this occurred by 11 August 2000 including the $13 000.

13. The wife disputes this.  She says that the husband had approximately $80 000 at separation and that he has used all of this money for his own purposes including to purchase the property at H, Western Australia referred to below.  I shall refer to this again below.

14. In February 2002 the husband purchased the property at H, Western Australia for $275 307.50.  The husband paid $117 403 and borrowed $157 904.50.  Of the $117 403, $81 250 was borrowed from the husband’s relatives.  His contribution from his own funds was $36 153.

15. The husband’s parents lived in this property. They paid the mortgage repayments assisted from time to time by lump sum payments by the husband’s brother.

16. In May 2002 the husband went to China to visit his relatives.  He met his current wife there in August 2002.  His wife is Ms X. Ms X had been working at a hotel in Beijing.  They commenced living in China as de facto partners.  They were married in China in August 2003.

17. The husband did not work while he was in China. His brother loaned him money for the repayment of some mortgage payments and for some living expenses. His wife was working. They were living in the husband’s parents’ home in Beijing.

18. The husband and his new wife came to Australia, arriving in Perth on 7 January 2004.  They have two young sons born in February 2004 and January 2007 respectively.  The husband and his wife have been living at H since they arrived in Australia. The husband’s parents also live with them.

19. In 2005 the husband purchased a Honda motor vehicle. This was funded from a $2500 trade-in on his father’s motor vehicle, a $5000 loan from his parents, $8000 savings, a car loan of $13 430 and the balance of $18 483 from his own funds.

20. In May 2006 the husband’s wife commenced operating a small business in Perth. She had also been undertaking some teaching work.

21. The husband stopped working full time in approximately September 2006. He ceased working altogether in early 2007.

22. In approximately August 2007 the husband repaid his brother $64 000. These monies were drawn down on the mortgage.

23. The husband and his wife recently refinanced the husband’s home loan from the ANZ Bank to Westpac. The home loan outstanding balance was $202 687.30 as at 1 June 2009. Part of this indebtedness included the $64 000 to repay the husband’s brother as well as money used to pay some of the husband’s legal costs. The husband and his wife also arranged for a business or investment loan to be secured against the H property. As at 4 June 2009 this loan was drawn down in the amount of $307 060. These monies have been used for the purposes of fitting out a shop for the wife’s business, purchasing stock and for other purposes of the business.

Issues

The wife’s allegation that the husband had $80 000 at the time of separation

1. The wife said that the husband accumulated cash savings from his work in the arts and from sales of his art during the time of the marriage.  She said that he declined to bank the takings from this business. 

2. As indicated above the husband said that at the time of separation he had $35 856.23.  As also indicated above, the husband said that he transferred $13 000 of this money to his sister to repay one of the loans from early in the marriage.  He said that he transferred a total of $29 350 to her by 11 August 2000 including the $13 000.

3. The husband’s sister said that in 1994 she loaned the husband $13 000 and subsequently loaned him over some years a further $21 000.  This was a total of $34 000.  The husband’s sister said that these loans were repaid by the husband in July 2000.  Learned counsel for the wife submitted that the Court should have reservations about the veracity of this evidence by the husband’s sister.  This was really on the basis that it was submitted that the husband’s sister had said during cross-examination that she did not know of a company called K Company, yet it is clear that in 1996 she deposited $15 000 to the husband’s Citibank account apparently on behalf of that entity.  I have checked the recording of this part of the evidence and that recording did not show that any questions by learned counsel for the wife about such a business were directed to the husband’s sister. Such questions were directed to the husband’s brother. I must say I thought the husband’s sister gave her evidence in a truthful way. In my view it supported in all respects the husband’s evidence about these matters.

4. Furthermore, in my view acceptance of the wife’s assertions that funds available to the husband at the time of separation have been used to purchase the H property would involve rejection not only of aspects of the husband’s evidence but also of the evidence of the husband’s brother about loans he made to the husband at the relevant time.

5. As indicated above, the husband said that the purchase price of the H property was $275 307.50. He said that he contributed $36 153 from his own funds, borrowed $81 250 from his relatives and borrowed $157 904.50 from the ANZ Bank.  The husband’s father said that he and his wife loaned the husband a total of $11 250 in early 2002 for the purchase of the property. The husband’s brother said that he loaned the husband $31 000 in January 2002. The husband’s sister said that she loaned the husband $39 000 also in January 2002. She annexed to her affidavit copies of relevant account statements in support of her evidence in this regard. I accept this evidence.

6. Learned counsel also suggested that the Court should be cautious about accepting the evidence of the husband’s brother.  This appeared to be on a couple of bases.  Firstly there appeared to be a general suspicion about the extent to which the husband’s financial affairs were enmeshed with those of members of his family.  In a general sense this went to such matters as the alleged funding of the purchase of the property at H, Western Australia.  There was a particular criticism on the basis that the husband asked his brother for money to pay the mortgage at a time when learned counsel for the wife said that it was clear that the mortgage was being paid.  There was also criticism of the level of additional payments made between March 2003 and January 2004.  During this period a total of $35 000 in additional payments were made to reduce the mortgage, these monies being paid by members of the husband’s family.

7. As was my opinion about the quality of the evidence of the husband’s sister, I have no problems with the evidence given by the husband’s brother whom I also thought was a witness of truth. For example, in support of his assertions about lending the husband the $31 000, the husband’s brother annexed copies of the relevant cheques to his affidavit. 

8. The other area of criticism about the husband’s evidence and supporting a submission that the Court should be slow to believe that the husband only had the alleged approximately $35 000 at the time of separation is on the following basis.  Learned counsel referred to the husband’s year 2000 income tax return.  In that there was a reference to interest and there was also a reference to the St George Bank and to an entry of $916.  It was submitted on behalf of the wife that if the husband earned interest of $916 then that would suggest that he had in an interest bearing account a fund of between $15 000 and $20 000, that being the amount required to generate interest at that level.  I must say in respect of this matter there is no satisfactory explanation by the husband about how this interest was sourced. But the husband’s response was that it was the wife in these proceedings who provided the figure of $916 to the accountant for the preparation of his income tax return.  Perhaps the inference was that if anybody was in a position to be able to explain how that figure was arrived at then it was the former wife and she did not do so.

9. Criticism of the husband in terms of his credit, also included the fact that during his cross-examination he was asked if he knew of a company K Company and he said that he did not know.  He was also asked if he remembered receiving from that company a cheque for $15 000 and he replied in the negative.  Subsequently, he said that if the company was something to do with recording music then he was involved in recording music.  Somewhat later during his cross-examination he was brought back to the subject of the said entity K Company and he said that he remembered that it was a company between himself and his sister that was in his name and that it cost $80 to register it.  He said that when he started doing his business that he needed a company registered in that name but later on he had nothing to do with it, that it did not carry out business and that he forgot about it. 

10. One would have thought that the husband would have recognised what was a business name registered by him although it would be conceivable for the administrative work to have been undertaken by his sister who gave me the impression that she would have a better grasp of administrative matters than the husband.  It was said by learned counsel on his behalf that the failure to recognise the business name by the husband might have been attributable to the pronunciation.  This is, of course, possible.  The way this evidence came out cast some doubt on the testimony of the husband but I do not consider it to have affected his evidence to such an extent that I would not accept his evidence.

11. Generally I thought the husband was a good witness.  As pointed out by learned counsel on his behalf a considerable amount of his depositions in his affidavits was supported by documentary evidence such as that contained in documents, copies of bank cheques and other documents.  As he was being cross-examined, I did not have the sense that there were major inconsistencies between his evidence and that of any of his witnesses.  I did not have the sense that he was holding back on his evidence.  There were some difficulties.  Some of these were difficulties which could be explained by the complexity of the interpreter having to translate to him in Mandarin the questions with all the usual difficulties with nuance and cultural matters and of course interpret and translate his answers in Mandarin into the English language.  The major weakness in his evidence was that he did not demonstrate knowledge of details of the refinancing of the mortgage on the H property with Westpac.  But he said his wife knew the details.  Generally I accept the truthfulness of the husband’s evidence.

12. I am unpersuaded by the wife’s assertions that at the time that the parties separated the husband had approximately $80 000 at his disposal.  In my view, this is more than likely a guess by the wife to support her own case.  In my view, at a broad level, it is against the whole financial history of this marriage at least in terms of the husband’s financial history.  As indicated at the outset of the marriage he did not have any money and he had to borrow money from his sister.  This pattern continued up to the time that the parties separated.  As I have said, the husband’s sister loaned him amounts subsequent to the initial loan by her of $13 000.  Those amounts aggregated to a total indebtedness by him in addition to the $13 000 of $21 000 by the time the parties separated.  At that time she thought an appropriate limit had been reached and she asked him to repay those monies.

13. The high point in terms of the husband having lump sum amounts at his disposal appears to have been reached in 1997 when the parties purchased the W property in respect of which the husband was able to withdraw approximately $30 000 from his account. The total of their funds was approximately $65 000, including the funds paid for the stamp duty. But of this total, $30 000 represented the wife’s funds from prior to marriage. In my view it would not be surprising for the husband to have had an amount in this region representing the extent of the husband’s savings at the time of separation. For him to have accumulated an amount more than double this would be in my view unlikely.

14. In any event, generally I had a less favourable view of the wife’s evidence than I did of that of the husband.  For example, the wife failed to disclose her interest in the S property in her original financial statement. Her explanation for this was that she thought she did not have to disclose this because of the pre-marriage agreement.  I had reservations about this explanation as well as about many other aspects of her evidence.

The Applicable Law

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

2. Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79.  This involves four inter-related steps.  Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.  Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.  Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two.  Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. 

1. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Property available for division

1. There were a number of issues in relation to what property is available for division between the parties.  The first of these matters related to the wife’s interest in the property at S.  It was submitted on behalf of the husband that the Court should find that despite the fact that the wife is registered as tenant-in-common of a one half interest, the other one half interest being owned by her late father’s estate, the Court should find that in reality the wife owns the entirety of the property.  This was said to be on the basis that this property was originally registered solely in the name of the wife and that the Court would be suspicious that the wife transferred a one-half interest as tenant-in-common to her father shortly after the parties married and in circumstances where, as indicated above, she had the husband sign the document acknowledging that he had no interest in this asset.

2. In my view there are difficulties with this.  Firstly the wife’s evidence was that this property was purchased at the request of her father who had at the relevant time, approximately 1988, received from Hong Kong the proceeds of a life insurance policy.  The wife said that her father did not have sufficient funds to purchase the property and he did not have the capacity to be able to borrow the shortfall.  So, in those circumstances, she said that he asked her to borrow money and to hold the property in her name.  The wife said that at about the time of the marriage she thought she should formalise the actual ownership situation by providing for her father to have an interest in the property as a registered owner.  For that purpose she transferred the interest to him.  In order to acquire her original interest in the property she borrowed approximately $40 000.  At the time of transferring the half interest to her father, of course she discharged the mortgage so that the property was unencumbered from that time.

3. I must say in my view no case has been made out to the effect that the wife is the owner of the entirety of that property.  I do not see anything inherently improbable in what she has said in her evidence about this matter and I accept that the position is as the wife has said namely, that she has a half interest in that property.

4. In relation to liabilities, the husband said that he owes $38 750 to GF and $7 500 to Citibank Visa.  It is not clear to me that the alleged loan from GF would be enforceable.  But in any event I do not propose to take these loans into account as against the wife in circumstances where the husband so recently drew down so heavily against the mortgage.

5. The property available for division between the parties consists of the following:-

Assets	$
1.         W property, New South Wales	285,000
2.         H property, Western Australia	550,000
3.         Wife’s half interest in S property, New South Wales	172,500
4.         Wife’s Ford Falcon motor vehicle	4,000
5.         Wife’s bank accounts	185
6.         Wife’s Hesta superannuation	4,089
7.         Wife’s Commonwealth roll-over superannuation	36,689
8.         Husband’s Honda motor vehicle	30,000
_____________
$1,082,463
Liabilities	$
1.         W property mortgage	92,000
2.         H property mortgage	511,808
_____________
$603,808
Surplus	$478,655

Contributions

1. As indicated above, the wife owned her one-half interest in the property at S, $30 000 and some personal property at the start of the marriage.  She was working and continued to work through the marriage.  When the parties went to Perth the wife established a shop and earned money from this venture as I have said.

2. In addition the wife had the use of one-half of the rent produced by the S property subject to payment of some outgoings such as rates.

3. On the other hand, as indicated above, the husband did not have any assets of significant value at the time of marriage and he borrowed money from his sister.  But the husband commenced working in the arts shortly after his arrival in Australia.  It is common ground that he earned significant income from his artistic activities and also from the sales of his art during the marriage.  He continued to work in the arts throughout the marriage

4. The husband paid the deposit and the first rental payment on the parties’ first home at P after which they each paid an equal share of the rent.  The husband also paid for the furnishings.  But after a few years they lived rent-free in the property owned by the wife’s sister for approximately 20 months.

5. The husband paid for much of the parties’ living expenses.

6. Each of the parties has made contributions to the welfare of their family unit and as homemakers.  The wife has undertaken the major part of the domestic duties other than cooking which the parties shared over the years.

7. In my view the husband has been unable to make a very significant contribution to the wife’s interest in the S property.  But he did demolish the swimming pool and its fence.  He also repaired a broken water pipe.  And of course this asset of the wife is not quarantined from the welfare and homemaker contributions the husband has made during the marriage.

8. On the other hand the wife has been unable to demonstrate any contribution to the husband’s home at H, at least not in my view.  This property was acquired after the parties separated.  As indicated above, the wife has been unable to persuade me that any funds available to the husband before separation have been used for the acquisition of, or otherwise in relation to, this property.

9. The position in relation to the parties’ property at W was different.  In my view the funding of this acquisition and the ongoing maintenance of the property and paying the mortgage have been much closer to equivalence than has been the case with the other properties.

10. Clearly the wife started the marriage way ahead of the husband in terms of her financial contributions by owning her property as described above. The marriage was relatively short, at least from inception to separation.  But the husband earned income at a higher rate than did the wife.

11. Despite the initial imbalance in the property of the parties and the fact that the H property was acquired by the husband after separation, I propose to use a global approach to the assessment of contributions.  My overall assessment of the contributions is that those of the wife have been significantly greater than those of the husband because of the wife’s initial property.  But her contributions have not been double those of the husband.  In my view the wife’s contributions have been 62 percent and those of the husband have been 38 percent.

s 75(2) matters

1. The wife is 47 years of age.  She suffers some difficulties in her health.  The wife has been attending the osteoporosis clinic for some years and takes prescribed medication. In late November 2007, examination of the wife revealed stable bone mineral density since 2006.  In mid 2007 the wife noticed soreness in her arm and shortly thereafter, her shoulder.  She ceased working but returned to work part time in late 2007 undertaking one shift per week initially and subsequently two shifts per week.  The wife continues to work two shifts per week.

2. She has difficulty sleeping and with pulling, pushing and lifting with her right arm.  The wife has been diagnosed by Dr B in August 2008 as having developed minor rotor cuff pathology in the right shoulder and degenerative change in her neck.  Dr B said that the wife would have difficulty increasing her 9½ hours of work per week and there is the potential for deterioration in her neck and shoulder condition.  Dr B thought the wife would have difficulty continuing her kitchen hand employment for longer than approximately age 55 years.  He thought that she might be able to undertake employment involving lighter duties at a higher rate than her present work involves including working in that manner beyond 55 years of age.

3. Precisely what the wife’s current income is, is not clear to me.  In her financial statement the wife estimated this as being $209 per week.  This was said to consist of $97 being the wife’s half share of the rent from the S property and $112 from the wife’s share of the rent from the W property.  Yet the parties agreed that their W property does not produce any profit but rather the rent received and the costs of the mortgage and outgoings “break even”.  The wife did not include in her financial statement any amount for her kitchen assistant wages.  But she undertakes 9½ hours per week of such work.

4. The wife has had the sole benefit of $10 965 from the sale of her Suncorp shares which were purchased during the marriage as well as $1285 from the sale of her Challenger shares.  The wife owned the latter prior to the marriage.

5. On the other hand, the husband is 52 years of age and there are problems in his health.  Professor S, psychiatrist examined the husband on 27 October 2008.  Professor S expressed the opinion that the husband is suffering illnesses across the spectrum of anxiety and depression the most obvious being post traumatic stress disorder.  He said that the symptoms have been in progress for some years and that this in itself suggests that they will be present for a long time and possibly for the rest of his life.  Professor S said that the prominence of symptoms of post traumatic stress disorder impairs the long term prognosis.  He said that the husband will need antidepressants for a long time and possibly for the rest of his life.

6. The husband was seriously assaulted in 2004 and apparently most of his symptoms began then.  He reduced his artistic activities thereafter and ceased working altogether in early 2007.  As indicated above, he has refinanced his mortgage to facilitate the availability of funds to provide towards an expansion of his wife’s business and to repay borrowings used to pay for his family’s living costs.  Whether the new business venture will be successful only time will tell.  It is difficult to see why the husband would be unable to assist his wife in her business, at least to some extent.  But unless there is significant improvement in the husband’s mental health, and the medical evidence would not support optimism in this regard, it is more likely than not that the husband would be unable to return to earning a living from his artistic activities.  In these circumstances I regard him as having very little capacity for earning income including for the foreseeable future.

7. The other relevant matters are the fact that until recently the husband had considerable equity in his property at H.  I have referred above to the details of its further encumbrance.  There must be significant value in the stock and business investment which has resulted from the refinancing of this property.  In my view the value of this should be attributed to the husband.

8. The husband has two young children to provide for.  But he also has his wife who is able to assist him in this.  She is the breadwinner for their family and the husband’s main contribution to their welfare has been in undertaking the major care of the children.

9. The marriage was relatively short in terms of the six or so years the parties lived together.

10. There is a modest difference between the parties’ capacities for earning income. It is also the case that the husband has new responsibilities for his young children. But in my view the fact that the husband had considerable equity in his H property until recently and used this to secure further borrowings which have been invested in the manner referred to above is a most significant matter.

11. In all these circumstances, in my view there is no basis for a departure from the position arrived at pursuant to the assessment of contributions.  Accordingly the husband will have 38 percent of the available property and the wife will have 62% thereof.

Conclusion and fourth step

1. The wife is to have 62 percent of the property available for division between the parties.  This is property with a value of $296 766 (62 percent of $478 655 = $296 766).  The wife has the following property:

Assets	$
1.         Half interest in S property, New South Wales	172,500
2.         Ford Falcon motor vehicle	4,000
3.         Bank accounts	185
4.         Hesta superannuation	4,089
5.         Commonwealth roll-over superannuation	36,689
_____________
$217,463

1. To achieve property with a value of $296 766 the wife will require further property with a value of $79 303 ($296 766 - $217 463 = $79 303).  The equity in the parties’ W property is $193 000 ($285 000 - $92 000 = $193 000).  If the wife was to pay the husband $113 697 this would provide her with the further $79 303 worth of property ($193 000 - $79 303 = $113 697).

2. On the other hand, the husband is to have 38 percent of the property which is property with a value of $181 889 (38 percent of $478 655 = $181 889).  The husband has the following property:

$
1.         H property, Western Australia	550,000
2.         Husband’s Honda motor vehicle	30,000
_____________
$580,000

1. But the husband also has the liability on his H property which is $511 808.  Accordingly, he has property with a net value of $68 192 ($580 000 - $511 808 = $68 192).  To achieve property with a value of $181 889 the husband requires further property with a value of $113 697 ($181 889 - $68 192 = $113 697).

2. If the wife wishes to keep the W property she will have to pay the husband the sum of $113 697.  If the wife decides not to pay the husband such amount the property will have to be sold and the net proceeds of sale paid to the parties in a proportion which will reflect this judgment.  The sum of $113 697 represents 58.91 percent of the equity in the property ($193 000).  The sum of $79 303 represents 41.09 percent of such equity.  Accordingly, the net proceeds would be paid in these proportions. 

3. The orders I propose will not affect the income-earning capacity of either party.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              1 October 2009