LOGAN & VARNUM

[2012] FamCA 1030

FAMILY COURT OF AUSTRALIA

LOGAN & VARNUM [2012] FamCA 1030

FAMILY LAW – DE FACTO PROPERTY – Adjustment of property interests –where the de facto husband made contributions entitling him to 80 per cent of the net asset pool – where the de facto husband made significantly greater financial contributions and the de facto wife provided most of the non-financial contributions to the home –where there was no adjustment made as both parties were unable to adequately support themselves at the close of proceedings – where the de facto husband suffered a stroke preventing him from carrying on his business – where the de facto wife remained living in the property where the parties cohabitated during the relationship – where final proceedings were heard in the absence of the de facto husband – where there was no recent information as to the de facto husband’s income - where there was a disagreement as to the period of the relationship and where that disagreement was not relevant in determining the adjustment to be made - where there were no children of the relationship and where both parties had adult children from former relationships

FAMILY LAW – DE FACTO PROPERTY -  Pool of Assets –  where three personal liabilities owed to the son of the de facto wife were excluded from the pool of assets – where two of those liabilities were characterised by the Court as personal liabilities between the de facto wife and her son – where one of the liabilities owed by the de facto husband could not be proved on the evidence before the Court and was also excluded

FAMILY LAW – DE FACTO PROPERTY - Jurisdiction – Commencement of Family Law Amendment (De Facto Financial Matters and Other Measures) Act (Cth) – where the applicant de facto husband filed his initiating application prior to the proclamation date on 9 February 2012 – where it was originally intended that a proclamation be made on 1 March 2009 - where judgement was reserved until after April 2012 when the provisions of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) would otherwise validate de facto property orders made in these proceedings

Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act (Cth)
Family Law Amendment (Validationof Certain Orders and Other Measures) Act 2012 (Cth)
Family Law Rules 2004 (Cth) rr 11.01, 11.02 and 12.03

APPLICANT: Mr Logan

RESPONDENT: Ms Varnum

FILE NUMBER: (P)NCC 592 of 2011

DATE DELIVERED: 17 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 14 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT: Conditsis & Associates

Orders

1. That pursuant to s 90SM of the Family Law Act 1975 (Cth) that each of the parties being Mr Logan (the Applicant) and Ms Varnum (the Respondent) do all such acts and execute all such documents as are necessary to sell by public auction the property known as 21 and B Street, C Town (“C Town”) being the whole of the land described in Lot … in the Local Government area of D Town NOTING that each of the parties may bid at that auction.

2. That from the proceeds of sale of auction the following be deducted:

   (a)monies owing pursuant to mortgage to ANZ Bank Account No. … secured on C Town;

   (b)agent’s commission and other associated costs and expenses of sale;

   (c)to the Respondent Ms Varnum the sum of $52,000;

   (d)the balance to the Applicant Mr Logan.

3. That the Australian and New Zealand Banking Group Limited pay the net proceeds of sale of E Street, F Town in the State of New South Wales such net proceeds being after the deduction of monies owing under the mortgage to the Australian and New Zealand Banking Group Limited secured on E Street, F Town to the ANZ Bank and other associated costs and expenses of sale as follows:

   (a)In trust for both parties pending satisfaction of any costs application made by either party within 42 days of the date of these Orders;

   (b)The balance, if any, to the Applicant Mr Logan.

4. That otherwise as provided for herein both the Applicant Mr Logan and the Respondent Ms Varnum be declared against the other to have the sole right, title and interest in any chattels, goods and other property which are in their possession respectively and to be liable for and indemnify each other in respect of all debts in their name solely.

5. If either party refuses or neglects to sign or execute and return a document within 14 days of a request to do so then a Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed under s 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  (P)NCC 592 of 2011

Mr Logan

Applicant

And

Ms Varnum

Respondent

REASONS FOR JUDGMENT

The applications

1. These are competing applications for the division of property between former partners to a de facto relationship.  Mr Logan is the Applicant and Ms Varnum is the Respondent.

2. The final hearing on 14 March 2012 was conducted in the absence of the Applicant who had ceased participating in the proceedings (see rr 12.3 (1), 11.01 and 11.02 of the Family Law Rules 2004 (Cth)).

history of proceedings

1. The parties are aged 60 and 57 years respectively.  Both were previously married and have adult children.  Mr Logan asserted that he was divorced in 2003.  Ms Varnum put this in issue.  However, whether or not Mr Logan is still legally married does not exclude the Court from dealing with this application.  However, the only implications in this case would have been those personal to the Applicant.

2. The parties met in 2004, began living together either later that year or in early to mid 2005.  They separated on 29 November 2010.  They conducted the whole of their relationship in the State of New South Wales.

3. Three months after separation, in March 2011, the Applicant filed an Initiating Application.  At that time he sought an interim order for exclusive occupation of the property at B Street, C Town (“the C Town property”) which the parties had most recently occupied together.

4. In support of that application  Mr Logan filed the following documents on 9 March 2011:

   a)Affidavit of himself sworn 2 March 2011;

   b)Financial Statement sworn 9 February 2011.

5. A case assessment conference was set down for the first return date before the Court on 13 April 2011, but about 10 days prior to the conference date, the solicitors for the Applicant wrote to the Court seeking an adjournment.  The basis for the adjournment was that their client was in hospital, having suffered a stroke on or about 29 March 2011.  The letter referred to the need for the Applicant to be assessed as to his capacity to continue to provide instructions to his solicitors, or whether they would need to appoint a Case Guardian. 

6. The case assessment conference was relisted and held on 28 September 2011.  Both parties and their respective solicitors attended.  On the 21 June 2011 the case was adjourned for an interim hearing in a judicial duty list on 27 July 2011.  The Registrar made directions for the filing and serving of documents by 20 July 2011.

7. The Respondent filed the following documents on 6 July 2011:

   a)Response sworn 6 July 2011;

   b)Affidavit of herself sworn 5 July 2011;

   c)Financial Statement sworn 5 July 2011

8. On 26 July 2011 the Respondent filed a further affidavit of herself sworn on the same date.

9. The Applicant filed two further affidavits on 14 July 2011:

   d)Affidavit of Mr Logan sworn 12 July 2011;

   e)Affidavit of Mr G sworn 12 July 2011 (the son of the Applicant)

10. On 27 July 2011 the matter came before me for interim hearing.  The Applicant was not present at Court and his absence could not be accounted for by his lawyers.  One or more of his worried adult children were present at Court.  A note on the Applicant’s letterhead written to his children was tendered into evidence[1].  By consent the proceedings were adjourned with liberty to relist on short notice.

    [1]  Exhibit ‘H1’

11. On 31 August 2011 the Respondent filed an Amended Response.

12. On 26 September 2011 solicitors for the Applicant advised a Registrar of this Court in writing as follows:

    We have only today obtained a medical report whereby we intend approaching the Court to have Mr Logan’s daughter Kristie appointed as Case Guardian.

13. The filing of an Application in a Case to appoint a Case Guardian was foreshadowed on 28 September 2011[2].  Unfortunately, no such application was made then or at any time since.

    [2]  Orders 28/9/2011 Notation C. Draft documents unsigned and unsworn.

14. On 1 December 2011, the solicitor for the Applicant was granted leave to withdraw from the proceedings.  The Applicant was not present at Court.  Subsequently a Notice of Ceasing to Act was filed by the solicitors.

15. Interim restraining orders were made arising from an Application in a Case filed by the Respondent.  The matter was set down for an undefended hearing on 23 February 2012.

16. The Respondent filed further documents as follows:

    a)Affidavit of Mr H sworn 10 February 2012, filed 14 February 2012 (Ms Varnum’s son);

    b)Affidavit of Ms Varnum sworn and filed on 22 February 2012;

    c)Updated Financial Statement of sworn and filed on 22 February 2012.

17. The Respondent wished to rely on these affidavits which had not been served on the Applicant.  Accordingly, the proceedings were adjourned to enable service on the Applicant to be effected.

18. I am satisfied that the Applicant was served at the relevant addresses with the additional affidavits together with a copy of the Orders made on 23 February 2012 and relevant case outline documents.

19. On 14 March 2012 the matter proceeded undefended.

20. It is most unfortunate that the Applicant was not present and his interests were not represented in this hearing.

21. In the circumstances, I have read all the material filed by each party to date referred to previously in these Reasons.

22. On 16 July and 19 July 2012 the matter came back before the Court.  There was no appearance by or on behalf of the Applicant.  Two further exhibits were tendered[3].

    [3]  Letter to Applicant and to solicitors for mortgagee (Exhibit ‘2’); Statement of Claim (Exhibit ‘3’)

23. Proceedings had been commenced in the Supreme Court on 4 July 2012 by the Australian and New Zealand Banking Group Limited (“ANZ Bank”) as mortgagee. The proceedings  relate to the Applicant’s default under the terms of a business loan agreement. ANZ currently seeks to exercise its right, as mortgagee, to sell the business premises of the de facto husband in satisfaction of its debt.

24. A fresh Minute of Orders sought by the Respondent had been served on the Applicant and the solicitors for the mortgagee.

25. It is apparent that the Applicant is still not engaging with his own business activities in addition to these proceedings.

Jurisdiction

1. The proceedings were also affected by a jurisdictional problem. 

2. On 9 March 2011 the Applicant filed his Application in this Court in the reasonable belief that the Family Law Amendment (De Facto Financial Matters and Other Measures) Act (Cth) (“the Amending Act”) had entered into law to amend the Family Law Act 1975(Cth) (“the Act”).  In fact the anticipated Proclamation was not made fixing 1 March 2009 as the date on and after which the jurisdiction of the Family Court could be exercised.  The Proclamation under s40(2) of the Act was made on 9 February 2012 fixing 11 February 2012 as the relevant date for the exercise of original jurisdiction in relation to de facto financial causes.

3. The Validating Bill having now passed into law (see Sch 1 Pt 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth)), allows the Court to make orders as though the provisions of the Amending Act had come into force on the 1 March 2009 as originally intended. This resolves the problem of proceedings purportedly instituted in this Court when there was no jurisdiction to entertain them.

4. The Respondent, through her counsel, acceded to the course of the proceedings being heard on 14 March 2012, with judgment reserved until the Validating Bill had been enacted.  The Bill was passed into law and proclaimed on

   
   

   21 April 2012.  Judgment was reserved accordingly. 

Length of relationship

1. The parties agree that they were partners in a de facto relationship, but disagree about its commencement date. 

2. Mr Logan says they met in mid to late 2004 and began living together in early to mid 2005. 

3. Ms Varnum does not refer to when the parties met, but asserts they began living together on 10 July 2004.

4. The parties agree that their separation on 29 November 2010 put an end to their relationship.

5. Accordingly, there was a de facto relationship between the parties for either five and a half years or six and a half years.  On either view, it was a reasonably short relationship.

6. I am unable to make a finding about the exact length of the relationship, but the outcome has not been affected by that difference.

Applicable law

1. Pursuant to s 90SM of the Act, the Court may make such orders as it considers appropriate with respect to the property of the parties or either of them, altering the interests of the parties to the de facto relationship in the property.

2. In considering what orders (if any) should be made, the Court must take into account the following pursuant to s 90SM (4) of the Act:

   (a)The direct and/or indirect financial contributions made directly by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property of the parties to the relationship or either of them.

   (b)The direct and/or indirect non financial contributions to the property of the parties;

   (c)Contributions made by a party to the welfare of the family constituted by, in this case, the parties.

   (d)The effect of a proposed order upon the earning capacity of either party.

   (e)Relevant matters in s 90SF(3).

3. The process taken is as follows:

   (i)identify the net asset pool of the parties;

   (ii)consider the various contributions each has made;

   (iii)consider relevant matters in S 90SF(3);

   (iv)be satisfied under s 90SM(3) that the orders proposed are just and equitable.

Assets and Liabilities

Assets
1.	A	B Street, C Town	544,000
2.	R	I Street, J Town	35,000
3.	A	Factory Unit at E Street, F Town	359,000
4.	A	ANZ Bank accounts:            -    2,935            -  10,365	13,365
5.	R	Commonwealth Bank account	465
6.	A	Motor vehicle 1	9,000
7.	A	K Pty Ltd	5,000
8.	A	Household contents, C Town	50
9.	R	Household contents, J Town	5,087
10.	A	Sale proceeds of boat	43,000
A	Draw down on overdraft 2011	40,495
11.	A	Commonwealth Bank account	265
12.	R	Motor vehicle 2	14,850
13.	A	ING Master Fund Superannuation	40,000
Total assets	$1,109,577
Liabilities
1.	A	Overdraft and business loan:            -  132,759            -    85,000 plus costs	234,152
2.	A	Mortgage on C Town property	433,000
3.	A	ANZ Visacard	19,000
4.	R	ANZ Visacard	3,200
5.	A	Gold Mastercard	1,600
6.	R	CBA Mastercard	250
7.	R	Motor vehicle 2	24,765
Total liabilities	$715,967
Net asset pool	$393,610

Notes to asset pool

1. Ms Varnum contends for three debts owed to her son Mr H:

   (1)$40,000 said to be owed by Mr Logan; 

   (2)$148,500 said to owed by Ms Varnum;  and

   (3)$20,000 said to be owed by Ms Varnum.

Debt of $40,000

1. The evidence about the $40,000 debt is contained in the following documents:

   a)affidavit of Ms Varnum sworn 22 February 2012 at pars 44 to 46 and exhibits ‘JV2’ and ‘JV3’;

   b)affidavit of Ms Varnum sworn 26 July 2011 at pars 40 to 42 and pars 63 to 64;

   c)affidavit of Mr H sworn  10 February 2012 at pars 7 to 13.

2. Ms Varnum makes various statements about the sum of $40,000.

3. The evidence of Mr H is that in September 2010, he received a compensation payout for injuries from an accident at work.  The amount was $273,294.40.  He asked his mother to hold it in a bank account for him.  The sum was deposited into an account in the name of Ms Varnum on

   
   

   27 September 2010.

4. In early November 2010, Mr H said his mother telephoned him and said:

   [Mr Logan] wants to borrow $40,000 for his business.  He says he will pay it back when he sells his boat.  He’s got it on the market.

5. There is a withdrawal of $40,000 on 4 November 2010 from the relevant account in Ms Varnum’s name described as “bank cheque ifo [K] Pty Ltd”[4].  On that day, there are seven further withdrawals and debits totalling $21,081.47.

   [4]  Affidavit of Ms Varnum filed 26 July 2011, Annexure ‘JV1’

6. By the conclusion of the following day, 5 November 2010, the balance of the account was $272.09.  It is apparent that all the funds but for that amount had been withdrawn.

7. In her affidavit sworn 26 July 2011, Ms Varnum says[5]:

   [At the time she borrowed the money from Mr, the Applicant said] ‘[The $40,000 borrowed from Mr] will be only short term until my boat is sold or I get paid for a couple of big jobs I’m doing’…

   [5] Affidavit of Ms Varnum filed 26 July 2011, para 63

8. Ms Varnum says Mr Logan made the request for her son’s money in a telephone call to her on 3 November 2010. 

9. Ms Varnum says she deposited the bank cheque into the ANZ bank account of K Pty Ltd on 4 November 2010.

10. In her affidavit sworn 22 February 2012, Ms Varnum (‘JV3’) points to a deposit of $40,000 on that date to the business account.  It is unidentified.

11. There is no reference in material relied on by Ms Varnum, including by

    
    

    Mr H, as to a request for return of the $40,000.  I cannot be satisfied that the transfer of $40,000 from the two relevant accounts was a loan by Mr H to Mr Logan.

12. Mr H says that late in November 2010, his mother said to him:

    [Mr Logan’s] taken the boat to Victoria.  He sold it for $43,000.  He’ll be able to pay you back now.

    A few days later there was this conversation:

    JV:      [Mr Logan’s] left me.

    RM:    What about the money I lent him.

    JV:      I’ll ask him to pay it back to you.

13. Mr H says he has not been repaid the $40,000.

14. I have no reason not to accept the statements of Mr H.  However, there is no evidence of any direct communication between the Applicant and Mr H.  There is no reference in the affidavits or financial statement of the Applicant to a debt of any amount to Mr H.  Even if such debt was established, it would be a liability owed by the business to Mr H.

15. If I accepted that there was a loan entered into between Mr Logan or his company and Mr H that would be a personal matter between them. 

16. I do note that Mr H says that Mr Logan and his mother had lent him some money shortly before he received his compensation payout[6].  He said this money was repaid when he received his payout.

    [6]   Affidavit Mr H filed 14 February 2012, para 10

17. In all of the circumstances, the debt alleged should be excluded from the asset pool given the uncertainty of the evidence.

Debt of $148,500 owed by Ms Varnum

1. The Respondent asserts in her affidavit sworn 22 February 2012 that on 26 November 2010 she entered into a franchise agreement for a food service business and paid $148,500 to acquire the franchise.  She borrowed $148,500 from her son, Mr H.

1. On 29 November 2010 the Applicant separated from the Respondent.  The Applicant left a note wishing the Respondent and her son well with her new business.

2. The business is said to be unsuccessful and the Respondent has suffered a loss.  The acquisition of this business came at separation and was arranged by the Respondent with her son.

3. I consider that this transaction is not a part of the de facto relationship of the parties.  The debt is excluded from the asset pool.

Debt of $20,000

1. The Respondent says she borrowed $20,000 from her son to discharge the mortgage on her J Town home.  This is confirmed by her son.

2. This is a debt apparently incurred in November 2010 when the Respondent withdrew the bulk of the funds from the account in the name for her son. 

3. This may be a personal debt repayable by the Respondent to her son.  It does not arise from the relationship and took place in the month when the parties separated.  Mr H has not sought to enforce any of the debts against his mother.

4. To the extent that the three debts are repayable to Mr H, they are the responsibility of the Respondent and are not joint liabilities of the relationship.

5. Likewise, the ongoing assets and debts of the food service business, set out below:

Assets	$55,000
Chattel debt	28,298

are excluded from the asset pool.

Contributions

Assets at commencement of relationship

1. The Applicant asserts the following:[7]

   [7]  Affidavit of Mr Logan filed 9 July 2011

Assets:
Property at L Town	300,000
K business	80,000
Furnishings	15,000
Motor vehicles	12,000
Superannuation	10,000
$417,000

1. The Respondent asserts the following:[8]

   [8]  Affidavit of Ms Varnum filed 6 July 2011

Assets:
Property at J Town	35,000
Furniture, effects and motor vehicle (ute)	15,000
$ 50,000
Liabilities:
Mortgage over J Town property	20,000
Motor vehicle loan	10,000
Credit card debt	5,000
Personal loan	6,000
$41,000
Net assets	$  9,000

1. Mr Logan asserts that Ms Varnum had furnishings and belongings of minimal value and personal loans and credit card debts in the order of $40,000 to $50,000.  He does not refer to the J Town property.

2. Ms Varnum was not fully aware of the assets and liabilities of Mr Logan when she began living with him.

3. Accordingly, I accept the unchallenged evidence of Mr Logan that he had assets with an approximate value of $417,000 when the relationship began.

4. I accept that Ms Varnum had net assets of $9,000.

5. The initial contribution of the Applicant therefore overwhelmingly favours the Applicant in the order of 98 per cent by him and 2 per cent by the Respondent.

During the relationship

1. When the parties first met Mr Logan was living in his workshop at L Town, where he had built a small living area.  Ms Varnum lived in the M Town area.

2. They commenced cohabitation by moving together into rented premises at N Town, close to Mr Logan’s workshop, where he operated a business in the building trade.

3. Mr Logan says he paid for the rent, utility bills and the majority of food expenses[9].  Ms Varnum concedes that this was so, at least until August 2009 when the money earned over three months at Central Coast Cartons was applied to joint living costs.

   [9]  Affidavit of Mr Logan filed 9 March 2011 at pars 12, 13, 14

4. Clearly Ms Varnum worked in a variety of part-time jobs during the relationship, other than for a period of months after she was injured in a boating accident in 2005, and for the last year of the relationship.  However, the main financial contributions came from Mr Logan.

5. There is no claim by Mr Logan that he made any significant contribution to the domestic work of the household.  I accept that Ms Varnum carried out the majority of the shopping, cooking, cleaning, washing and ironing.  The main non-financial contributions came from her.

6. In August 2009, about 15 months prior to separation, Mr Logan sold his business premises in L Town netting approximately $400,000.  He applied these funds to the purchase of a factory unit in F Town for $290,000.

7. The C Town property was also purchased in the joint names of the parties for $550,000 with a mortgage secured over that property and the F Town business premises.  There are two houses on the C Town property, one of which is leased.

8. Ms Varnum does not claim to have made any direct financial contribution to the purchase of the C Town property.  The evidence does not support her view that “we almost had enough funds to buy the [C Town] home without further borrowings”.

9. Clearly, the financial contributions to existing assets were also made overwhelmingly by Mr Logan.  There are non-financial contributions by

   
   

   Ms Varnum to take into account. 

10. The contributions favour the Applicant in the ratio of 75/25 at the date of separation.

11. Post separation Ms Varnum has had the benefit of living in the property for almost two years with her son and grandson.  Some board is paid by her son.

12. For this reason an adjustment of 5 per cent is made in favour of the Applicant.

13. Accordingly, the contributions during the relationship and post separation should be assessed as favouring the Applicant in the ratio of 80/20.

Adjustment - Section 90SF(3) of the Act

Age and health

1. Mr Logan is aged 60 years.  He had a stroke in March 2011.  I have no medical evidence of his current state of health or prognosis.  There is unchallenged evidence from Mr Logan’s son, who worked with his father in his kitchen building business for the 12 years up to July 2011.  A summary of the evidence about Mr Logan is as follows:

   ·he was in hospital/rehabilitation for five weeks around April and May 2011;

   ·he returned to work in May 2011, but speech problems and a diminished ability to use figures for quoting and design meant that he was unable to fill roles in the company he had previously held;

   ·he no longer had a drivers license in July 2011;

   ·he has had ongoing memory problems, including loss of memories associated with the skills and knowledge he had previously used to operate his business;

   ·in July 2011 the business was paying the mortgage on the C Town property;

   ·he was living in the factory premises with inadequate heating and facilities.

2. I accept this evidence.  It corroborates the evidence of the Applicant on those matters.

3. Ms Varnum had a boating accident almost eight years ago, when she broke both her shoulders.  There is otherwise no evidence of ill health or disability affecting the Respondent.

Income property and financial resources of each of the parties

1. I do not have any current information about the income of Mr Logan.  It is apparent that he has a greatly reduced capacity for self employment and a limited capacity for employment.  There is a forced sale of his business premises underway.

2. In respect of Ms Varnum, she is presently not in paid employment and was unable to proceed with her plan for self employment in food service.

Responsibilities of either party to support any other person

1. Ms Varnum has her son and grandson living with her in the parties’ home at C Town.  Her son pays board of $100 per week.  This is a choice and not a legal obligation.

Eligibility of either party for Commonwealth benefits

1. In her most recent Financial Statement, Ms Varnum refers to a widow’s pension of $215 per week, at that time supplementing income received from her food service business. 

2. The most recent Financial Statement filed by Mr Logan was on 9 March 2011, referring to an average weekly income of $1190 from his business K Pty Ltd.  This Financial Statement was sworn before Mr Logan suffered a stroke and the difficulties and disabilities outlined earlier in these Reasons.  I have no current information of the eligibility for or receipt by Mr Logan of Commonwealth benefits, or whether he has accessed the $40,000 in superannuation referred to in that financial statement.

Standard of living

1. Mr Logan is living in sub-standard circumstances, much less than he has enjoyed throughout his working life.  Ms Varnum is presently living in the parties’ home in C Town.

The effect of a proposed order on the ability of a creditor to recover the creditor’s debt

1. The ANZ Bank as mortgagee proposes to sell the factory unit to recover its loan and overdraft facility.  Nothing in these orders will prevent ANZ from recovering this payment from the Applicant. The Court only makes orders dealing with any of net proceeds of sale that exceed the amount needed to satisfy the outstanding debt.

Duration

1. This has been a five to six year relationship in later life.  The circumstances immediately following the breakdown of the relationship namely, Mr Logan suffering a stroke has had an adverse effect on the maintenance of the parties’ assets and on the capacity of Mr Logan to work.

2. In circumstances where both parties are unable to support themselves, there should be no adjustment either way.

Just and Equitable Outcome

1. Neither party is now in a financial position to pay out the interest of the other in the C Town property.  It will have to be sold.

2. The factory unit will be sold either by the mortgagee or Mr Logan by negotiation with the mortgagee.  That will put a formal end to the business owned and successfully operated by Mr Logan for many years. 

Outcome of Orders

1. The Court must not make an order unless it is satisfied in all the circumstances that it is just and equitable to do so (see s 90SM (3) of the Act).

2. Pursuant to these orders the parties will receive/retain the following assets:

   In respect of proceeds of sale the figures are approximate and it is noted that the pool is reduced by sale costs.

   Ms Varnum

Assets:

Property in J Town

      35,000

Household contents in J Town

        5,087

CBA accounts:        -          465

  -          265

            730

Motor vehicle 2:

           Value  14,850

           Debt    24,765

  (9,915)

     (9,915)

           Total

     $30,902

Liabilities:

Credit cards

        3,450

           Total net assets

     $27,452

Plus cash payment

     $52,000

     $79,452

Mr Logan

Assets:

Net proceeds of sale of factory unit inclusive of business assets of $5000 and overdraft payout

E 120,000

Net balance of proceeds of sale of C Town property after payment of estimated sale costs

E 100,000

ANZ Bank accounts:

-    2,935

-    10,430
13,365

      13,365

Draw down on overdraft

      40,495

Motor vehicle 1

        9,000

Household contents

              50

Proceeds of sale of boat

      43,000

Superannuation

      40,000

           Total

   $365,910

Liabilities:

ANZ Visacard

      19,000

Gold Mastercard

         1,600

           Total

     $20,600

           Total net assets

   $345,310

Less cash payment to Respondent

    $ 52,000

   $293,310

1. I am satisfied that in all the circumstances it is just and equitable to make the orders proposed.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 August 2012.

Associate:

Date: