Lorking and Lorking

FAMILY COURT OF AUSTRALIA

LORKING & LORKING

[2009] FamCA 396

FAMILY LAW – PROPERTY – Settlement in relation to marriage
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lorking

RESPONDENT:

Mr Lorking

FILE NUMBER:

SYC

4778

2007

DATE DELIVERED:

15 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2-4 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

Orders

In these orders:
(a)“the Westpac loan” means the loan from Westpac Banking Corporation in the names of both parties, secured by way of mortgage on the title of the M property and the Unit 14, G property;
(b)“the February Orders” means the orders made by consent between the husband, the wife and the second respondent on 11 February 2009 which provide (inter alia) that:
(i)the S property be sold (Order 5);
(ii)the second respondent receive 48.8% of the nett proceeds of sale (Order 6.4);
(iii)the balance be deposited to the Westpac loan account (Order 6.5).
(c)
“Dobrich trust funds” means the funds held on behalf of the wife by

Mr Dobrich solicitor (listed at number 4 of the Balance Sheet filed in Court on 4 March 2009), in addition to the amount to be refunded to those trust funds pursuant to Order 6.2 of the February Orders (listed at number 5 of the Balance Sheet filed in Court on 4 March 2009).
The Court notes the orders previously made in these proceedings, by consent on 11 February 2009.

The M property

Within 28 days of the settlement of the sale of property at S (“the [S] property”) in accordance with the February Orders, the husband do all acts and things and sign all documents as are necessary to cause his interest in the property at M (“the [M] property”) to be transferred to the wife.
Simultaneously with the transfer referred to in Order 3 above the parties, at the wife’s expense, will do all acts and things to cause the mortgage associated with the Westpac loan to be discharged.
(a)the wife will pay to the husband the sum of $278,592, subject to orders 8 and 9.
From the date of transfer in accordance with this order the wife will be and remain responsible for all and any outgoings associated with the M property, and will indemnify the husband in relation thereto.

Unit 14

The parties forthwith do all acts and things and sign all documents necessary to sell the property at G (“Unit 14”) and by way of consequential arrangements that shall be made for the purpose of effecting the sale:
(a)the parties will list Unit 14 for sale with such agent as the parties may agree to appoint and in default of agreement as to the agent within 7 days of the date of these orders, such agent as the President of the Real Estate Institute of New South Wales (or the President’s nominee) shall appoint (“the agent”) and the costs of and incidental to such appointment shall be borne equally by the parties.
(b)the parties will consult with each other in relation to the sale price, the method of sale and method of advertising of Unit 14, and in the event the parties are unable to agree in relation to these aspects of the sale, the parties will accept the advice of the agent.
(c)the parties shall agree on an independent solicitor to undertake the conveyance of Unit 14 and if there is no agreement then the solicitor shall be appointed by the President of the Law Society of New South Wales or his nominee.
(d)Unit 14 is to remain on the market until sold.
Upon the sale of Unit 14 the parties shall do all acts and things necessary to cause the proceeds of the sale to be paid and distributed in the following manner and priority:
(a)in payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
(b)in reimbursement to either party of any sale costs paid in advance by that party;
(c)in adjustments of rates and other outgoings;
(d)in payment of to the wife of 54% and to the husband of 46% of the balance then remaining.

“Rise and fall” provision re S property

In the event the funds deposited to the Westpac loan in accordance with Order 6.5 of the February orders are less than $647,680, the amount paid by the wife to the husband pursuant to Order 4(b) herein will be reduced by an amount equal to 46% of the difference between $647,680 and the actual amount deposited to the Westpac loan.
In the event the funds deposited to the Westpac loan in accordance with Order 6.5 of the February orders are more than $647,680, the amount paid by the wife to the husband pursuant to Order 4(b) herein will be increased by an amount equal to 46% of the different between $647,680 and the actual amount deposited to the Westpac loan.

Dobrich trust funds & rental property expenses

Pending the transfer of the M property in accordance with Orders 3, 4 and 5 herein, and the sale of Unit 14 in accordance with Orders 6 and 7 herein, the parties will do all acts and things to ensure that the Dobrich trust funds are applied to the nett loss arising on a month by month basis in relation to Unit 14 and the M property.
In the event the Dobrich trust funds are fully depleted prior to the transfer and sale of the properties in accordance with Orders 3, 4, 5, 6 and 7 herein, the following will apply:
(a)the wife will meet the expenses in relation to Unit 14 and the M property in the first instance;
(b)at the end of each month the wife will provide to the husband a document setting out the nett income received in respect of Unit 14 and M property, and the expenses paid by her in respect of Unit 14 and the M property;
(c)within 14 days of receipt of the document referred to in Order 11(b) herein the husband will pay to the wife a sum equal to one-half of the nett loss paid by the wife in respect of Unit 14 and the M property;
(d)in the event that the husband does not pay to the wife the sum (or any part thereof) referred to in Order 11(c) herein, then the amount which remains unpaid by the husband will be deducted from the distribution to be made to the husband from the sale proceeds of Unit 14.
In the event there are funds remaining in the Dobrich Trust Funds which have not been applied in accordance with the orders herein, then those remaining funds will be distributed as to 54% to the wife and 46% to the husband.

Adjustment for “other” assets, superannuation and liabilities

Simultaneously with the distribution of the sale proceeds of Unit 14, the husband pay to the wife from his share of the proceeds the sum of $2,237.00.

Other assets and liabilities

As between the parties, the husband is declared the sole legal and beneficial owner of:
(a)       his interest in the company known as SA Pty Ltd;
(b)       proceeds of bank accounts in his name;
(c)       the Mazda motor vehicle in his possession;
(d)       furniture, furnishings and contents in his possession.
As between the parties, the wife is declared the sole legal and beneficial owner of:
(a)       her interest in the company known as AI Pty Ltd;
(b)       proceeds of bank accounts in her name;
(c)       the Mazda motor vehicle in her possession;
(d)       furniture, furnishings and contents in her possession.
Other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in their respective possession and control.
The husband and the wife each be declared the owner of such superannuation/annuity entitlements, and person benefits to which they are or might become entitled in their own right.
Except as otherwise provided herein, the husband and the wife remain liable for any debts in their own name at the date of these Orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
In the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar or Deputy Registrar of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
Each party have liberty to apply on 7 days’ notice in regard to the meaning or implementation of these Orders.
Any application for costs be filed an served within 28 days of the Orders herein made, and subject to the following;
(a)any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application;
(b)any respondent to a costs application must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely; and
(c)the applicant will have a further 7 days in which to file any submission in reply.
In the event that no application is filed within the time limit specified in Orders 20 and 21 above, then each party is to pay their own costs of an incidental to these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4778 of 2007

MS LORKING

Applicant

And

MR LORKING

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings between the parties in which each of them seeks an alteration of their property interests.
The first task of the Court in proceedings of this nature is to identify the property of the parties to the proceedings or either of them.
Initially, there was joined in the proceedings a second respondent, namely, the husband’s mother who made claim to portion of the property the subject of the husband and wife’s dispute. Those proceedings which, inter alia, involved the existence and/or interpretation of certain deeds were resolved by consent on

11 February 2009
and orders were made in the following terms:
“1. In these Orders, the following definitions apply:
1.1“The [S] property” means the property at [S], in the State of New South Wales, being all the land in folio identifier […], registered in the name of the husband and the wife as tenants in common in equal shares;
1.2“The [M] property” means the property at
[M], in the State of New South Wales, being all the land in folio identifier […], registered in the name of the husband and the wife as tenants in common in equal shares;
1.3“The [M property] loan” means the loan from Westpac Banking Corporation in the names of both parties, secured by way of mortgage on the title of the [M] property and the [S] property.
As between the Husband, Wife and Second Respondent
2.There be a declaration that the second respondent is the beneficial owner of 48.8% of the [S] property.
3.There be a declaration that the applicant wife and the second respondent husband hold 48.8% of the [S] property on trust for the Second Respondent and are liable to pay to the Second Respondent a sum equivalent to 48.8% of the gross proceeds of the sale of the [S] property less the cost of sale as is provided by these Orders.
4.The husband and the wife forthwith take all necessary steps to discharge mortgage […] registered over the [S] property and for the release of that property as security of any loan to Westpac Banking Corporation (“Westpac”) with the intent that the said property shall be free of encumbrance and for the purpose of this Order the parties shall ensure that the said mortgage shall be discharged on or before 28 February 2009.
5.The parties do all acts and things and sign all documents necessary to sell the [S] property and by way of consequential arrangements that shall be made for the purpose of effecting the sale:
5.1The husband and the wife will list the [S] property for sale by private treaty not later than 28 February 2009 with such agent as the parties may agree to appoint and in default of agreement as to the agent by 28 February 2009, such agent as the President of the Real Estate Institute of New South Wales (or the President’s nominee) shall appoint (“the agent”) and the costs of and incidental to such appointment shall be borne equally by the husband and the wife.
5.2The sale price at which the [S] property shall be listed shall be such price as may be mutually agreed upon by the husband and the wife in consultation with the solicitor for the Second Respondent and in the absence of agreement reached by 28 February 2009, shall be the price nominated and the fair market value thereof by a valuer (other than a valuer in the employ of the agent) appointed by the President for the time being of the Australian Institute of Valuers (New South Wales branch) (“the valuer”), and the costs of and incidental to such appointment and valuation to be borne equally by the husband, the wife and the Second Respondent.
5.3The valuer shall, if requested by either the husband, the wife or the Second Respondent at a date three calendar months after the date upon which the [S] property is first listed pursuant paragraph (sic) to 5.1 hereof and thereafter at three calendar monthly intervals until the home is sold, nominate a sale price other than the originally nominated sale price.
5.4The husband and the wife will accept the advice of the agent in relation to the method of sale and method of advertising for the [S] property, and will keep the Second Respondent informed in relation to method of sale and the advertising.
5.5The husband and the wife will appoint Mr. Peter Dobrich, solicitor, of […] in the state of New South Wales to undertake the conveyance of the [S] property.
5.6The [S] property is to remain on the market until sold.
6.Upon the sale of the [S] property pursuant to these Orders the husband and the wife shall do all acts and things necessary to cause the proceeds of the sale to be paid and distributed in the following manner and priority:
6.1In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
6.2In reimbursement to either party of any sale costs paid in advance by that party;
6.3In adjustments of rates and other outgoings;
6.4In payment to the Second Respondent of a sum equivalent to 48.8% of the balance remaining after the payments referred to in Orders 6.1 – 6.3 (the “48.8% Share”), unless the Husband and Wife have been, despite taking all necessary steps under Order 4, unable to procure the discharge of the mortgage registered over the [S] property, in which case following the payments referred to in Orders 6.1 – 6.3, the priority for the payment of the balance of the proceeds of sale shall be:
(a)in payment of the minimum sum required by Westpac to discharge the mortgage over the
[S] property;
(b)in payment to the Second Respondent of the 48.8% Share (or such proportion of the 48.8% Share as remains available for payment, if any);
(c)payments in accordance with Orders 6.5 and 6.6 below;
6.5In payment of the then remaining balance (if any) to the [M property] loan or in the event that a new loan is established pursuant to Order 4 herein prior to settlement of the sale of the [S] property, then to that loan;
6.6In the event any amount then remains, in payment to the husband and the wife of the balance in equal shares.
7.The husband and wife shall pay and bear in equal shares all costs associated with obtaining the release referred to in Order 4 hereof.
8.The Court notes that:
8.1subject to and conditionally upon the due receipt of the payment to the Second Respondent of the 48.8% Share the Second Respondent hereby releases the husband and the wife from any further claims at law or in equity or pursuant to any statute or otherwise which she has or may have against the husband and/or the wife.
8.2The husband and the wife hereby release the Second Respondent from any further claims at law or in equity or pursuant to any statute or otherwise (including but not limited to the provisions of Deed between the parties on or about 5 March 2000 and the document entitled Agreement made between the parties also on or about 5 March 2000) which they have or may have against the second respondent.
9.That the Second Respondent’s Application for Interim Costs be withdrawn and dismissed.
10.That each party pay their own costs in relation to the proceedings involving the Second Respondent.
As between the Husband and the Wife
11.The Court further notes that, pending further order and following the expiry of the current lease on the property at [Unit 14] in February 2009 the husband and the wife agree that the wife will have exclusive use and occupation of that property.”

Background Facts

The husband was born in Australia in April 1957.
The wife was born in Yugoslavia in December 1955.
The husband and the wife commenced cohabitation in 1997 at the husband’s home unit which had been occupied by him for some ten years prior to that event.
The parties were married in March 1998.
The parties separated in October 2006.
Proceedings were commenced before this Court in 2007.
The husband worked as a contractor, he being an engineer during the whole of the relationship.
The wife worked at a variety of outside employments at P Company and at B Company and finally at V Company.
The parties submitted a Chronology of relevant dates and events. It encompassed a lot of admitted history although the parties were at odds on a number of issues, some more important than others and many of them questions of degree and extent - for example in relation to the extent of the husband’s domestic assistance in the home.
An edited version of that chronology is set out below.
In 1987 the husband purchased a unit at G (“Unit 14”).
In May 1995 the husband was declared bankrupt. His Trustee lodged a caveat on the title of Unit 14.
In 1996 the title to the property was transferred into the name of the trustee.
In January 1997 the wife purchased a home unit at D (“the [D] unit”).
Between January and April 1997 the wife retained tradespeople to renovate the D unit. The husband assisted in the renovations.
In April 1997 the wife says that the parties commenced cohabitation. The husband moved into the wife’s unit at D. The husband disagrees and says that they commenced cohabitation in March 1999. It seems more probable that cohabitation commenced on neither of these dates but rather in 1998 when the parties and the wife’s daughter moved into Units 4 and 14, and I so find.
In April 1997 the wife asserted that she held savings of approximately $44,000, in addition to superannuation, her interest in the D unit and accrued employee entitlements. The husband says that he does not know if this assertion is true.
In September 1997 the wife left her employment with P Company and received cash entitlements of $22,874.53 and $8,012.83 in addition to a superannuation rollover for the amount of $25,492.81.
In February 1998 the wife incorporated a company known as AI Pty Ltd (hereinafter referred to as “[AI Pty Ltd]”). Until May 2007, AI Pty Ltd was used exclusively for the husband to work as a contractor.
In March 1998 the wife purchased a unit at G (“Unit 4”).

On 20 March 1998 the parties, together with wife’s daughter, occupied both Unit 4 and Unit 14.
On 20 March 1998 the parties commenced providing financial support to

Mrs Lorking Snr, the husband’s mother (hereinafter referred to as “the husband’s mother”). The wife says that she was the source of that support.
In April 1998 the wife sold the D unit and received net proceeds of sale in the sum of $123,925.20.
On 26 April 1998 the husband’s bankruptcy was annulled and property - Unit 14 - was transferred back to husband unencumbered and the wife paid some amounts toward outstanding liabilities associated with husband’s bankruptcy. The parties are not at issue that the wife assisted with those payments necessary to procure the end of the husband’s bankruptcy but the parties are at issue as to the extent of that contribution.
In May 1998 the husband, for no consideration, transferred an interest in Unit 14 to the wife as a joint tenant.
Between May and October 1998 renovations were undertaken to Unit 4 and Unit 14.
In February 1999 the husband’s mother sold her property at L.
In March 1999 the parties purchased property at S, and moved into this property. The husband’s mother contributed $423,364.48 of the total purchase costs of $867,669.48.
In March 1999 the husband’s mother commenced occupying Unit 14.
Between 1999 and 2000 the husband sustained losses of approximately $6,000 carrying out share trades. The wife asserted that the losses were in the order of $10,000.
On 5 March 2000 two deeds were signed by the wife, the husband and the husband’s mother, relating to the purchase of the property at S.
In November 2000 the wife’s leg was broken. The wife received a full salary for the whole of the time that she was away from work and her mobility was affected for approximately four weeks. It is asserted by the husband, and denied by the wife, that during that time the husband carried out more domestic tasks than usual.
In July 2001 the husband underwent back surgery. He received no salary for three weeks while away from work.
In December 2001 the parties purchased a unit at T for $975,000 and which was subsequently rented to tenants.
On 1 July 2002 the wife received V Company options as a bonus from her employer. They were able to be exercised in July 2005. The husband says he did not know that she received these options.
Between 2002 and 2003 the husband was unemployed for a period of not more than six months.
In October 2003 the parties purchased a Mazda 6 motor vehicle, which was retained by wife at separation.
In 2004 the husband’s mother underwent knee replacement surgery.
In mid-2004 the wife inherited $49,552.71 from her father, of which $44,460 was used to repay the mortgage on the S property. The balance was used, she says, for living expenses. The husband admits the receipt of the funds but not their application.
In October 2004 the parties sold foreshore land associated with Units 4 and 14 and receive nett proceeds of $60,761.52. The funds received ultimately formed the deposit on the purchase of the property at M.
On 12 March 2005 the parties entered into an agreement to purchase a unit at M. The purchase was “off the plan”.
In August 2005 the wife sold her V Company shares, and received nett proceeds of $26,870.95 and subsequently paid CGT when her 2005/6 taxation return was filed. The husband says he does not admit this transaction.
On 10 July 2006 settlement of the purchase of the M property took place. The property was purchased for $1,080,000, and remained vacant for approximately three months, before being leased.
On 11 October 2006 the parties separated when the husband vacated the matrimonial home. The wife remained in the home with her daughter.
On 11 October 2006 the husband withdrew funds from parties’ joint bank accounts and the AI Pty Ltd bank account - $98,519 was withdrawn by the husband, leaving $65,203 in that joint account for the wife’s use, and leaving $9,336.51 in the AI Pty Ltd account.
Subsequently:
a)AI Pty Ltd retained the $28,340 + GST received in October 2006 and $5,760 + GST received in December 2006 from E Company;
b)a cheque for PAYG tax of $4,000 was presented and withdrawn from the account;
c)
the wife paid $4,000 tax for PAYG on the husband’s earnings after

1 October 2006
; and
d)the wife paid $4,271 by way of superannuation contribution for the husband. The husband does not agree with these assertions.
On 27 October 2006 the husband registered a new company, SA Pty Ltd.
In November 2006 AI Pty Ltd received a $16,000 tax refund.
In early 2007 the husband purchased a motor vehicle.
In 2007 the wife left her employment with V Company and received a termination payout of $57,927.34, which included unused leave. The wife transferred $80,000 to fund her daughter’s participation in a Masters Degree in the United States.
In May 2007 the wife commenced working as a contractor through AI Pty Ltd.
In May 2007 the wife transferred $6,000 to husband, being part of the $16,000 tax return received by AI Pty Ltd in November 2006. The wife asserted that she agreed to treat the balance of that tax return, namely $10,000, as a partial contribution by the husband to the parties’ expenses associated with the various rental properties. The husband denied such agreement.
In late 2007 the husband’s mother was admitted to hospital and has not subsequently returned to reside at Unit 14.
The wife asserted that from 1 November 2007 to 30 June 2008 apart from the $10,000 adjustment referred to above, the wife utilised her income to meet all of the expenses in relation to the parties’ investment properties, with no assistance from husband, totalling $97,743.47 after offset. The wife also asserted that she continued to meet expenses associated with the occupation of the husband’s mother of Unit 14. The husband puts these matters in issue saying that he cannot agree with the assertion. However, it is noted that a sum of the same amount was paid to her from the subsequent sale of the property at G.
On 17 June 2008 settlement of sale of Unit 4 for $495,000 took place.
At the settlement of the sale of Unit 4, the wife directed that she be reimbursed for the expenses of $97,743.47 paid by her. Funds were otherwise held by the conveyancing solicitor to meet ongoing expenses relating to the properties.
On 24 July 2008 the parties exchanged contracts for the sale of the T unit for $1,000,000.
At the commencement of the proceedings a balance sheet was presented of the assets and liabilities of the parties and was revised on the last day of the hearing. That latter balance sheet was to the following effect.

Assets
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
1	J	Estimate nett proceeds of [S property] available to parties after sale and payment to Second Respondent – see below	647,680	647,680
2	J	[Unit 14, G]	620,000	620,000
3	J	[M property]	1,080,000	1,080,000
4	W	Trust funds – remaining sale proceeds of [Unit 4]	23,181	23,181
5	J	Funds to be repaid to Trust funds at sale of [S property] (estimate)	5,039	5,039
6	W	[R] Building Society	4,993	4,993
7	W	[R] Building Society ([AI] P/L)	138	138
8	H	Westpac […]85	87	87
9	H	Westpac […]10	5	5
10	H	Westpac ([SA] P/L)	4,103	4,103
11	H	2006 Mazda 6	26,700	26,700
12	W	2003 Mazda 6	18,600	18,600
13	H	[SA] P/L	Negligible	Negligible
14	W	[AI} P/L	Negligible	Negligible
15	W	Contents	10,000	10,000
16	H	Contents	9,500	9,500
17	W	Paid legal fees (Robyn Sexton & Associates)	79,371	79,371
18	H	Paid legal fees (Watson & Watson)	35,755	35,755
19	H	Paid legal fees (other lawyers)	16,452	16,452
20	H	Funds held in trust by sols (Watson & Watson)	20,000	20,000
21	W	Funds held in trust by sols (Robyn Sexton & Associates)	20,000	20,000
22	H	Debt owed to husband by his mother	29,000	Nil
Total			$2,650,604	$2,621,604

Addbacks
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
1	W	Payment by W to her daughter	Nil	100,964
Total			$0	$100,964

Liabilities
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
1	J	Mortgage ([M property] & Unit 14)	1,122,044	1,122,044
2	W	CGT [Unit 14]	33,465	33,465
3	H	CGT [Unit 14]	28,100	28,100
4	W	CGT [T property]	13,052	13,052
5	H	CGT [T property]	13,052	13,052
6	W	CGT [M property]	Nil	Nil
7	H	CGT [M property]	Nil	Nil
8	W	DJs card	Nil	Nil
9	H	DJs card	Nil	Nil
10	W	CBA MasterCard	16,940	16,940
11	H	Westpac MasterCard	10,034	10,034
12	H	Superannuation & PAYG	Nil	25,055
13	H	Accountant	Nil	3,100
14	J	Sale costs for [Unit 14] (estimate)	15,000	15,000
Total			$1,251,687	$1,279,842

Superannuation
Member	Fund & Interest	Wife’s Value ($)	Husband’s Value ($)
1	W	Mercer Trust	145,050	145,050
2	H	Aust choice	143,041	143,041
3	H	AXA	7,629	7,629
Total			$295,720	$295,720

Financial Resources
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
1	See note
Total			$0	$0

Balance Sheet Notes
Nett proceeds of [S property] estimate	($)
Value	1,300,000
Sale costs – estimate (including agents commission, legal fees, advertising and preparation for sale)	(35,000)
$1,265,000
48.8% of nett sale proceeds	(617,320)
Proceeds available to parties	$647,680

Assets
1	See basis of estimate below. In accordance with orders dated 11 February 2009, these proceeds are to be deposited into the loan referred to at Number 1 in the Liabilities.
17	Wife asserts this amount was paid from post separation earnings.
Addbacks
1	Wife does not concede that t he amount should be added back. She says that the funds transferred are from post separation earnings. In addition, she asserts that the husband has expended an unquantified amount in the support of his mother since separation.
Liabilities
6 7	If this property sold at valuation amount, each of the parties would reflect a capital loss in that financial year of $7,235.67.
13	Husband’s (sic) says this was paid on his MasterCard.
Superannuation
Financial Resources
1	Wife asserts husband has resource in an anticipated inheritance from his mother.

That balance sheet incorporated amendments asserted by the wife which were necessitated arising out of the evidence which had been given. A number of items remained in issue on the balance sheet and in particular they were said to be:
a)The debt owed to the husband by his mother (item number 22) with respect to certain benefits provided to his mother or to her benefit by the husband.
b)A claimed add back of $100,964 representing monies paid by the wife to her adult daughter to support her whilst overseas studying.
c)Claims with respect to payments made by the husband for accountant’s fees were sought by the wife to be deleted. This was sought on the basis that the husband gave evidence he had paid those fees by drawing on his credit card which was specified, and that to count those fees would be to double-count the liability.
d)It was asserted that the superannuation and PAYG liabilities of the husband ought not to be included because either they were incurred post separation or, if not, that the husband had the means whereby he should have discharged them but chose instead to conduct a somewhat alleged lavish lifestyle in order to make the liabilities ones which would be shared with the wife.
In relation to those issues:
a)It is argued that the sum due by the husband’s mother is not claimable by him against her. It is said this is by reason of the fact that debts owed by the mother to the husband were in issue in the litigation in these proceedings between the husband’s mother, the husband and the wife. Consequently, it is said that claims for entitlement arising out of benefits provided to the mother were subsumed in the settlement of that dispute. I agree that this is the position.
b)I accept the basis of the submission in relation to the add back claim of the husband with respect to the monies paid to the benefit of the wife’s daughter in part. I decline however to add back the amount sought to be added back. I note that the wife in her affidavit specified the payments which she made to the benefit of her daughter and it is true that some of those payments were made as the wife alleged from post separation derived income. However, a portion of them was made from monies or entitlements earned during the course of the relationship and which is lost to a division between the parties by reason of the payment. It is also asserted, and I accept, that those payments were made without the consent of the husband which was neither sought nor obtained. Whilst declining to add back this non-asset as an asset in the balance sheet, I will take into account and give appropriate weight to the payment in the exercise of my discretion under the provisions of the Family Law Act 1975 (“the Act”), and having regard to the provisions of section 75(2)(o). The wife’s child (not being a child of the husband), has received a significant benefit from monies earned during the course of the marriage in part, and that those payments were made without the consent of the husband.
c)I will take into account in my consideration the fact that during the course of this marriage the husband contributed to the support of the wife’s daughter who was not it seems supported significantly in any financial way by the child’s father. The support provided by the husband in these proceedings was both direct financial support and indirect support. For example, in agreeing to the provision of monetary payments to the child; contributing to the provision of accommodation for a time for the child; providing furniture and furnishings together with that accommodation, and in providing the use of computer facilities, amongst others. I will also take into account that the husband’s mother received some support from the parties, although it is hard to quantify that support. I note that the parties were assisted by the husband’s mother to purchase a property at G and that the husband’s mother had the benefit of the occupancy of another property owned by the parties for a time.
d)In relation to the claim for accountancy fees, I disallow that liability in the balance sheet because it is otherwise allowed for in the credit card debt of the husband and in the circumstances I do not wish to double-count the item.
e)So far as the superannuation and PAYG liabilities of the husband, I include those in the balance sheet as a liability of the husband. I also note the assertions made by counsel for the wife and will take into account and give appropriate weight to those submissions when determining how the assets should be divided between the parties.
On the basis of those decisions I find that the assets and liabilities of the parties are as follows:

Assets
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
J	Estimate nett proceeds of S property available to parties after sale and payment to Second Respondent – see below	647,680	647,680
J	Unit 14, G	620,000	620,000
J	M property	1,080,000	1,080,000
W	Trust funds – remaining sale proceeds of Unit 4, G	23,181	23,181
J	Funds to be repaid to Trust funds at sale of S property (estimate)	5,039	5,039
W	RBuilding Society	4,993	4,993
W	R Building Society (AI P/L)	138	138
H	Westpac …85	87	87
H	Westpac …10	5	5
H	Westpac (SA P/L)	4,103	4,103
H	2006 Mazda 6	26,700	26,700
W	2003 Mazda 6	18,600	18,600
H	SA P/L	Negligible	Negligible
W	AI P/L	Negligible	Negligible
W	Contents	10,000	10,000
H	Contents	9,500	9,500
W	Paid legal fees (Robyn Sexton & Associates)	79,371	79,371
H	Paid legal fees (Watson & Watson)	35,755	35,755
H	Paid legal fees (other lawyers)	16,452	16,452
H	Funds held in trust by sols (Watson & Watson)	20,000	20,000
W	Funds held in trust by sols (Robyn Sexton & Associates)	20,000	20,000
Total			$2,621,604	$2,621,604

Liabilities
Ownership	Description	Wife’s Value ($)	Husband’s Value ($)
J	Mortgage (M property & Unit 14)	1,122,044	1,122,044
W	CGT Unit 14	33,465	33,465
H	CGT Unit 14	28,100	28,100
W	CGT T property	13,052	13,052
H	CGT T property	13,052	13,052
W	M property	Nil	Nil
H	M property	Nil	Nil
W	DJs card	Nil	Nil
H	DJs card	Nil	Nil
W	CBA MasterCard	16,940	16,940
H	Westpac MasterCard	10,034	10,034
H	Superannuation & PAYG	Nil	25,055
J	Sale costs for Unit 14 (estimate)	15,000	15,000
Total			$1,251,687	$1,276,742

Superannuation
Member	Fund & Interest	Wife’s Value ($)	Husband’s Value ($)
W	Mercer Trust	145,050	145,050
H	Aust choice	143,041	143,041
H	AXA	7,629	7,629
Total			$295,720	$295,720

Balance Sheet Notes
Nett proceeds of S property estimate	($)
Value	1,300,000 ±
Sale costs – estimate (including agents commission, legal fees, advertising and preparation for sale)	(35,000) ±
1,265,000 ±
48.8% of nett sale proceeds	(617,320) ±
Proceeds available to parties	$647,680 ±

Contributions

Financial contributions of the husband and wife

At the date of commencement of cohabitation the husband was bankrupt. The husband however had a bankruptcy in which his assets exceeded his liabilities. His bankruptcy was later annulled.
It is commonly agreed, as is much in this case, that his assets were superior at that time to those of the wife by a figure of not less than $20,000.
The relative value of the amount was higher than now.
The income of the parties during that period of cohabitation is agreed and there is a schedule attached to the affidavit of the wife which sets out their respective incomes and is as follows:

[The husband]	[The wife]
Income from earnings/ salary/ allowances for the years from 1998 to 2006	$959,360	$1,245,578
Income from earnings salary and allowances for the years 2007 and 2008	$315,560	$506,772

The wife said, at paragraph 53 of her affidavit filed 20 February 2009, that at the time the husband and wife commenced living together, the husband was bankrupt and receiving an allowance from the trustee. The wife says she was in full time employment, earning approximately $120,000 and that her employer paid for private health insurance and a company vehicle. I accept that this was so.
The wife said that following separation she increased her work hours, including to the effect that she worked on weekends and took very little holidays. Consequently, the wife said that during the period 1 July 2006 to 30 June 2008, she earned $506,772, excluding income from the rental properties. During that period it is the wife’s evidence that the husband’s income was $315,560, excluding income from the rental properties. I accept that this was so.

It is said by the wife that she undertook these additional hours of work in order to meet the expenses on the rental properties of the husband and wife and also to assist her daughter in the continuation of her studies. In her affidavit filed

20 February 2009
, she said that her current work contract expires in March 2009, and at the time of swearing that affidavit said she does not have certainty of employment after that time.
The wife received an inheritance in 2004 and applied the sum to family uses.
The wife claimed and the husband agreed that he was able to procure a discharge from and annulment of his bankruptcy, as a result of payments which the wife made at least in part to the trustee of the husband’s bankrupt estate.
The husband also made a contribution to those payments which provided the basis for the annulment referred to.
It is accepted that the wife paid after the separation the shortfall which had been incurred in relation to certain investment properties between the income and the outgoings of those properties but it is equally not disputed that the wife received funds out of capital to reimburse her for that shortfall.
During the marriage there was a differential in the income and earnings of the parties but there was support provided for the wife’s child, as discussed in this judgment. However, the husband also provided support for his mother.
There seemed to be on the part of the wife a readiness to say that the support of her daughter, particularly after she became an adult, and as discussed later in this judgment, was legitimate whereas the support of his mother by the husband did not have the same moral foundation. To the extent that the husband supported both the child and his mother I reject any assertion that he owed a greater obligation to the wife’s daughter.
Whilst there have been significant agreements on facts between the parties there were also areas of disagreement.

The estate of the husband’s mother - arising on her death

It is asserted by the wife that the husband’s mother’s estate to arise on her death is a matter of significance which should be taken into account by me in determining a just and equitable distribution of the assets of these parties. And I will take into account once again in a general way, the fact that before the court in evidence is a Will of the husband’s mother, an 81 year old woman who is said to be in ill-health, and in which the husband is an equal beneficiary with his sister.
The evidence of the husband, which I accept, is that his mother presently requires care more than he can provide and that she will need to take up residence in a place where better care can be provided. I accept that there will be a cost associated with that.
I have no evidence of the mother’s life expectancy. I do have evidence that she will receive an estimated $600,000 odd arising out of the settlement made in these proceedings and I have no evidence of her liabilities nor do I have any evidence of her life expectancy or estimate of the costs of her continuing needs.
It was asserted by the wife that, given that the mother had previously executed a Will in which he was the sole beneficiary, it was possible that the husband might bring a proceeding to set aside the current Will in favour of the former Will. The husband has said he will not do this. I accept this evidence.
In my view, even were he to seek to do that, there would be a further contingency namely a possibility of claims by the husband’s sister under the provisions of the Family Provisions Act 1982 (NSW).
The whole matter of potential challenge to the existing Will, which is prima facie valid, and the result of such a challenge for the husband is so speculative that I reject that any weight should be attached to that possibility.
I find that their contributions other than financially were equal. I accept that both parties have made contributions equal in value to the welfare of the family. The contributions claimed by the wife in establishing a company from which the husband operated, is given some, but not much, weight by me. The wife’s involvement in the management of the rental property is of importance. In relation to the household tasks I believe these were shared on the evidence, not necessarily equally, but the husband made a significant contribution. I accept that the husband, using his skills as a woodworker and with some assistance from the wife, manufactured items of furniture or assembled items of furniture for use by the parties.
I take into account the whole of the evidence and in particular the matters referred to above under section 75(2) and particularly section 75(2)(o). I also take into account the past demonstrated earning capacities of the parties, although I note that they may not continue at that level.

Financial support and contributions to the wife’s daughter

The wife has a daughter, of a previous relationship (hereinafter referred to as “the wife’s daughter”), who filed an affidavit in these proceedings on 20 February 2009. She was born in November 1982, and is currently 26 years of age.
The wife’s daughter lived primarily with the mother, having said in her affidavit filed 20 February 2009 that she spent approximately one evening per week with her father. The mother agrees, and says that the daughter had dinner with her father weekly, in addition to spending time with him during weekend periods.
It is the daughter’s evidence that in October 1996 she and the mother moved out of their home and into Unit 14. The wife, in her affidavit filed 20 February 2009 said that in the second weekend of October 1996 she and her daughter moved into the husband’s home. She said that on 31 October 1996 the husband asked her and her daughter to leave, and they did so two days later. The husband does not agree.
In early 1997 the daughter said that the mother and daughter moved to the D Unit, and that shortly thereafter the husband began staying there for most nights of the week. The wife said that this occurred in April 1997, whereas the husband asserted it was in March 1999. The wife said that between April and June 1997 the husband stayed mainly at her home, with the husband moving the last of his possessions into her home in August 1997.
On 20 March 1998 the husband and wife, together with the wife’s daughter, commenced to occupy Unit 4 and Unit 14.
The husband contended that he provided assistance to the wife’s daughter, including that he built and installed furniture for her - including a bed, a bed head, a clothes rack and shelving, and to which Exhibit “3” refers. I accept that evidence.
The wife, in her affidavit filed 20 February 2009 says that the husband and wife provided the daughter with her own bedroom, food and clothing but that the daughter earned spending money from part time employment between November 1997 and March 1998. The daughter agreed and said she worked Thursday evenings and weekends between approximately October 1997 and March 1998, and that during this time did not receive money from either of her parents. I accept the evidence of the mother. I do not accept that the daughter received no benefits from the husband and or wife.
The wife said that the husband declined to give her daughter any money for discretionary expenditure. The daughter said she did not receive a spending allowance from either of her parents, but that her father usually gave her this money if requested.
In his affidavit filed 19 February 2009, the husband said that his relationship with the wife’s daughter at this time was reasonable but that, in effect, it declined as she grew older. The husband says, at paragraph 43 of his affidavit, that he would drive the wife’s daughter to places as required from time to time. I accept this evidence.
I do not accept as correct a statement made by the wife’s daughter that her support from funds generated in this marriage was minimal. She had been supported by funds generated in the marriage in the pursuit of her studies.
The affidavit of the wife’s daughter, filed 20 February 2009, said that she commenced a relationship with Mr BN (hereinafter referred to as “[Mr BN]”) and who had filed an affidavit in these proceedings on 20 February 2009. The relationship commenced in or about April 1999 and at around the same time as moving to the S property.
The wife’s daughter said she spent increasing periods at the home of Mr BN’s family, to the effect that during her final year of high school, the daughter said that spent approximately four nights per week at Mr BN’s home. In his affidavit filed 20 February 2009, Mr BN said that the wife’s daughter stayed at their home for approximately four or five nights each week, and that she ate dinner and breakfast with his family.
The daughter said she also spent weekends with Mr BN and that there was one period when she did not return home for six weeks, but that otherwise up until April 2005 she ate dinner at the S property approximately once per week. The affidavit of the wife, filed 20 February 2009 said that between in or about mid 1999 and mid 2005, the daughter stayed with the husband and wife on average for two nights each week. I accept the wife’s evidence in this regard.
This arrangement is said to have continued when the wife’s daughter commenced university in 2001, and up until the end of April 2005, when the relationship ended. The wife’s daughter said she then began spending most of her time at the S property. I accept this evidence.
The husband said, at paragraph 86 of his affidavit filed 19 February 2009, that during the marriage the wife gave money to her daughter. The husband also said that the daughter had a credit card in the wife’s name, which was paid from the joint account of the husband and wife. I accept this evidence.
Exhibit “9” in these proceedings is a letter from the wife’s solicitor to the husband’s then legal representatives. It said that the transfers of money from the wife to her daughter were done on an ad hoc and irregular basis, and that the wife holds no documents which evidence them. In that letter the wife’s solicitor said they are instructed that any money given to the wife’s daughter during the marriage was with the husband’s knowledge and consent. It appears agreed therefore that during the marriage the daughter was supported from funds of the parties.

The payment of an amount derived from the wife’s employment during the marriage to the support of her adult daughter

In her affidavit filed 20 February 2009, the wife said that in 2007 her daughter commenced studying for her Masters Degree in the United States and that she had provided financial assistance to her daughter to enable her to complete her overseas studies.
In his affidavit filed 19 February 2009 the husband said his solicitors sought advice from the wife’s legal representatives in relation to these payments. The husband said he was advised that the amounts paid by the wife to her daughter totalled $100,964.70.
Exhibit “9” is a letter from the wife’s solicitor to the husband’s then legal representatives. It sets out post-separation transfers made by the wife to her daughter, between the periods 24 November 2006 and 11 May 2007 and totalling $100,964.80. This is the figure which is given by the wife, in her affidavit filed 20 February 2009 at paragraph 70.
In relation to the post-separation transfers made to the wife’s daughter, in the letter at Exhibit “9”, the wife’s solicitor said that the husband was aware the wife’s daughter was enrolling to study in the United States, for which she would require financial support as it was as a condition of her visa that she is not permitted to work. This was supported by the wife’s daughter in her affidavit filed 20 February 2009, in which she said that when studying for her Masters Degree her ability to earn a salary was restricted, and that she is currently not permitted to earn a salary.
In addition, it was said that the wife received two payments from the daughter’s father, totalling $4,000. The wife said that the transfer made on 11 April 2007 for $50,000 took place only after the wife became aware she was to receive a termination payment from V Company, which was received on 11 May 2007 for the net sum of $57,927.34.
In his affidavit filed 19 February 2009, the husband said that in early 2007, following separation, the wife’s employment with V Company was terminated and she received a termination payment of approximately $80,000.
The husband said he also believed the wife had been issued with a bundle of shares in V Company, and that she gave the proceeds of these to her daughter in early 2007. The husband said, at paragraph 121, that he was informed of these matters at the time of the first financial status disclosures in mid 2007.
In her affidavit filed 20 February 2009 the wife said that the proceeds of sale of the shares were applied towards the joint expenses of the husband and wife. The wife said that in July 2002 she was granted share options as a result of her employment with V Company, and that in 2004 she was granted 350 V Company shares. The wife said that in August 2005 she exercised the options and sold the V Company shares and received $26,870.95 on 12 August 2005. The wife asserted at paragraph 47 that these funds were deposited into the husband and wife’s joint account and formed part of the deposit for the M property.
The wife said that in July 2006 she sold the V Company shares and received gross proceeds of approximately $1,000. She said the proceeds of sale were deposited into the husband and wife’s joint account and used for joint expenses.
The husband asserted that the financial support provided by the wife for her daughter’s overseas studies was from funds that would otherwise be available for division between the parties. At paragraph 86 of his affidavit filed 19 February 2009, the husband said he was prepared to support the wife’s daughter whilst she resided with the parties, but that he did not consent to the payment of money to her, post separation and in circumstances where she had left to go to the Untied States. I accept his version of events.

The support of the husband’s mother

There is no doubt that during the course of the marriage the husband assisted his mother financially from time to time.
The wife said she would have objected to such assistance had it not been for the fact that the mother had agreed to pay it back out of the capital in jointly owned property. Notwithstanding, she did agree to it and has settled the matter with the husband’s mother.
I do not on the balance of probabilities accept her asserted lack of knowledge of the arrangements made with the husband’s mother.
It seems that the parties benefited from the contributions made by the husband’s mother to the purchase of the property at S. The wife complained that the husband at a time when he was bankrupt, purchased a motor vehicle for his mother. The husband admitted to purchasing such a motor vehicle, but said that it was used more frequently by the husband and wife than his mother and I accept that evidence.
From March 1999 to September 2007 the husband’s mother had resided alone at Unit 14. During this time the husband said he provided financial support for his mother, including payment of council rates and utilities, replacement of household furnishings, as required, and weekly support averaging $300 per week. The parties’ however had the benefit of the use of the mother’s capital.
The wife deposed to having made contributions to the welfare of the husband’s mother. The wife said that, between the period of separation and the husband’s mother leaving Unit 14, she continued to pay all expenses in relation to that property, with the exception of the telephone bill. The wife said she continued to pay for utilities, rates and water usage as part of the costs jointly shared by the husband and wife.
In her affidavit filed 20 February 2009 at paragraph 21 the wife deposed to a conversation in which she said an agreement was reached that the husband and wife would pay the husband’s mother $150 per each week, and that she would ensure the husband and wife inherited her unit. The wife said that in September 2001 this amount was increased to $165 per week. The wife says that she and the husband also paid other costs for the husband’s mother, including car and entertainment expenses.
The wife said that she kept copies of invoices and receipts relating to expenditure for the husband’s mother, in addition to maintaining a notebook from March 1999 until 30 September 2002, recording the weekly allowance paid to her by the husband and wife. At paragraph 33 of her affidavit filed 20 February 2009 the wife sets out amounts which she said the husband and wife expended in relation to the mother and, in summary, she estimated that such expenditure was not less than $85,000. I do not accept that amount as being demonstrated but I do accept that the mother was provided with support and assistance. I also accept that the parties had the use of the mother’s capital in that it was applied to the purchase price of the S property in which they and the wife’s daughter resided.
In addition, the wife says that the contributions made by her towards the husband’s mother and her estate included the provision of rent-free accommodation from March 1999 until approximately late 2007. This has to be offset against the use by the parties of the home purchased partly with the mother’s capital.
In his affidavit filed 19 February 2009, the husband set out circumstances involving his mother’s health, and the roles consequently undertaken by him in caring for her. The husband said that in early 2007 his mother told him she had been diagnosed as having the early stage of Alzheimer’s disease and osteoporosis. In addition, he said he was told that his mother was losing sight in both her eyes as a result of macular degeneration. The husband said that his mother’s ability to care for herself had thus declined rapidly in the past two years.
Following September 2007, the husband said it became apparent that his mother could not continue to live independently. In his affidavit filed 19 February 2009 he said that the mother experienced a period of severe mental confusion, and he became concerned about her ability to undertake household tasks and day to day activities, and the impact on her physical wellbeing.
The husband subsequently arranged temporary respite care for his mother as he said, at paragraph 58 of his affidavit, that he was unable to accommodate her in the rental apartment where he lived at that time.
The husband’s mother had several periods of hospitalisation during 2007, and the husband said he was advised by those who cared for her that his mother could no longer reside alone. During these periods the husband said he visited his mother and provided assistance to her, including with laundry.
On 29 February 2008, at paragraph 63 of his affidavit filed 19 February 2009, the husband said that his mother was discharged from Hospital and had resided with him at W since that time.
The husband said that his obligations in caring for his mother whilst she lives with him has necessitated making arrangements for his mother’s care during periods when he is required to travel interstate with his work. His evidence is that he pays a number of expenses for his mother, including medical expenses, food and rent.
It is the husband’s contention at paragraph 69 of his affidavit filed 19 February 2009, that his mother’s current situation is that she is unable to care for herself physically. He said his mother requires daily assistance and supervision due to having little eyesight and mobility and suffering from Alzheimer’s disease. It is the husband’s evidence that his mother’s health requires him to undertake a number of tasks for her, including pre-preparing her meals. At various times the husband said he has also provided other forms of assistance for his mother, including arranging medical appointments and transportation to them, mostly during business hours. I accept this evidence.

The husband’s employment through AI Pty Ltd

The husband deposed to having been bankrupt during the time that he was the sole registered proprietor of Unit 14 and in her affidavit filed 20 February 2009, the wife said that it was in or about 1995 that the husband indicated to her he had been made bankrupt.
From the time the parties commenced cohabitation the wife said, at paragraph 19 of her affidavit filed 20 February 2009, that the husband said to her at regular intervals words to the effect of, “Why don’t you start up a company that I can work through? I can’t have one, because of the bankruptcy.”
In February 1998 the wife incorporated a company, AI Pty Ltd, as sole shareholder. The husband agreed that AI Pty Ltd was a shelf company acquired by the wife in November 1998, and having been incorporated in February 1998.
At paragraph 19 of her affidavit filed 20 February 2009, the wife said that up until the date of separation, AI Pty Ltd was used exclusively as a vehicle through which the husband contracted employment. The husband agreed, and said his contract employment from the date of the marriage and after separation, was through AI Pty Ltd.
The husband said he was discharged from bankruptcy on 26 March 1998 and at paragraph 103 of his affidavit filed 19 February 2009 said that the wife paid the sum of $30,000 to the Official Trustee in Bankruptcy at the time of his discharge from bankruptcy. In her affidavit filed 20 February 2009 the wife sets out, at paragraph 23, expenses she said that using her savings she paid a number of liabilities accumulated by the husband during the period of his bankruptcy.
The husband said, at paragraph 92 of his affidavit filed 19 February 2009 that following separation the wife terminated his employment with AI Pty Ltd, without paying him or discussing any employee entitlements, such as annual leave or superannuation.
Following separation, the husband went on to say, at paragraph 94 of his affidavit that the wife terminated the contract between E Company and AI Pty Ltd, without observing the period of notice required in the contact. The husband later purchased a shelf company, SA Pty Limited, which was incorporated in October 2006, as a vehicle to resume his employment with E Company.
Annexure “G” to the wife’s affidavit filed 20 February 2009 is a copy of an email sent to E Company informing them the husband was no longer employed by AI Pty Ltd, and also of the company’s impending closure. The wife said that from May 2007 she began contracting her services through AI Pty Ltd.

Credit

In relation to the question of credit I do not make any general findings of credit. It is true that the wife was non-responsive on many occasions and sought every opportunity it seemed to denigrate the husband and belittle his contribution on occasions to avoid answering questions.
Her evidence, taken as a whole, was not impressive, but I accept her on certain matters.
The husband, whilst more responsive to questions asked, on occasions was not so responsive and the evidence given by him in his Financial Statement was inaccurate to a degree that gave rise to significant concern about that document. Schedules said to have been attached to it were not so attached. Statements made that his mother who was residing with him received no income were clearly wrong and the document was not that full and frank disclosure that ought to have been made. The failings of the document were brushed off by the husband with a short apology and a quick correction.
The wife was emotional and demonstrated significant angst in matters relating to the husband. Some of her evidence was offensive, in particular her suggestion that the husband’s mother ought not to shop at David Jones.
The wife asserted the husband was lazy, yet his income figures suggest that that is not the case.
It is asserted and not gainsaid that the income derived by the wife was as a result of working long hours. She submitted that thereby her contributions should be accorded greater value.
I take into account in a general way those assertions and believe that the wife did work hard to earn the money that she did derive.
I reject however the assertion that the husband was lazy.
The husband did have periods of unemployment and that is conceded.
I find that the parties contributed in accordance with their ability to do so to the marriage although it seems clear the wife’s financial and other contributions exceeded those of the husband by a margin.
The wife’s daughter however, was supported by the parties and now aged 26 years, has had only two months of paid employment in the last five years and has clearly been a drain on the resources of the parties.
Much was sought to be made of the fact that the wife had permitted her daughter to present to the Court an affidavit which contained factual errors. I find on the evidence that the affidavit did contain factual errors and that the wife gave it probably scant attention. I do not read into her carelessness in considering those assertions as being the basis for any significant finding on credit.
Overall, both parties’ evidence made if difficult to make any general finding on credit and my findings on credit are reflected in my findings made on fact. In this judgment where I make a statement of fact that is my finding on that fact.
Given all those matters I have come to the conclusion that the parties’ financial contributions to the acquisition, conservation and improvement of their joint and several property and their contributions to the welfare of the family should be assessed in the proportions of 55% for the wife and 45% for the husband.
On a consideration of all the matters above and weighing them up I believe it is appropriate to make a small adjustment in favour of the husband (particularly but not solely, by reason of support of the wife’s daughter) of that division and that adjustment would yield a division in the proportions 54% to the wife and 46% to the husband.
I consider that the result which will arise from such a distribution of assets will do justice between the parties and recognise appropriately the contributions, needs, means and financial resources of each of the parties. Each of the parties will be able to look to the future with some certainty and significant assets.

Form or Orders

As to the form of orders which I should make consequent upon that finding I am urged by Mr Livingstone to make an order for the sale of the M property which has been the subject of a claim by the wife for transfer to her and which is before the court at an agreed value.
In his opening, Mr Livingstone said that he was instructed that there had been some movement in the value of the property and that the process of its sale would be a better basis for determining its value and in that event either party could bid for it. I have given this request consideration and note that the parties are agreed that the request for an order for sale came at the commencement of the hearing of the case.
There is no alternative valuation evidence before the Court which points to Mr Livingstone’s client’s assertion as to value. The existing valuation has been agreed and was the only evidence of value.
It seems to me that the argument advanced by Mr Miller has substance that in the absence any evidence to support the assertion the Court would not lightly undertake the making of such an order given that the sale of the property would involve necessary cost for selling commission and the legal costs of sale.
It also seems to me that the Court is encouraging of parties before the Court to use jointly appointed experts or to agree on value and in this case they have an agreement. If the Court were to pay no heed to the agreed value then the process of appointment and valuation or agreement or both would only be a basis for expenditure of monies fruitlessly. I therefore accept the valuation agreed. I find that the parties can have justice done in respect of their claims without the necessity for sale of that property. I see no reason why on the evidence the claim of the wife for a transfer in specie as part of her settlement should not be acceded to and I propose to so order.

The orders that I propose to make to give effect to the decisions I have made can best be demonstrated by dividing the pool of assets as found, as follows:

($)
Unit 14
Estimated sale price	620,000
Estimated costs of sale	15,000
Estimated nett proceeds of sale	605,000
Husband to receive 46% of estimated proceeds of sale	278,300
Wife to receive 54% of estimated proceeds of sale	326,700
$605,000

($)	($)
M property
Husband to transfer to the wife	1,080,000
Less mortgage (M property and Unit 14)	1,122,044	-($42,044)
Add estimated amount payable under consent orders relating to:
S property
Add payment to mortgage from sale	647,680±
Nett value to be transferred to the wife	605,636±
Less Adjusting payment to the husband (46%)	278,592±
Nett amount to the wife (54%)	327,044±

($)
Dobrich Trust Fund
Trust funds – remaining sale proceeds of Unit 4	23,181
Estimated Funds to be repaid to Trust funds at sale of S property	5,039
Trust funds to be applied as required by the Orders with the balance, if any, to be applied as to 54% to the wife and 46% to the husband.
Wife ($)	Husband ($)
Other Assets and Superannuation
R Building Society	4,993
R Building Society (AI P/L)	138
Westpac …85	87
Westpac …10	5
Westpac (SA P/L)	4,103
2006 Mazda 6	26,700
2003 Mazda 6	18,600
SA P/L	Negligible
AI P/L	Negligible
Contents	10,000
Contents	9,500
Paid legal fees (Robyn Sexton & Associates)	79,371
Paid legal fees (Watson & Watson)	35,755
Paid legal fees (other lawyers)	16,452
Funds held in trust by sols (Watson & Watson)	20,000
Funds held in trust by sols (Robyn Sexton & Associates)	20,000
$133,102	$112,602
Superannuation Fund and Interest
Mercer Trust	145,050
Aust Choice	143,041
AXA	7,629
$145,050	$150,670
Other assets + superannuation	$278,152	$263,272

Wife ($)	Husband ($)
Other Liabilities
CGT Unit 14	33,465
CGT Unit 14	28,100
CGT T property	13,052
CGT T property	13,052
CGT M property	Nil	Nil
CGT M property	Nil	Nil
DJs card	Nil	Nil
DJs card	Nil	Nil
CBA MasterCard	16,940
Westpac MasterCard	10,034
Superannuation & PAYG	25,055
Total Liabilities	$63,457	$76,241
Total nett other assets	$214,695	$187,031

Wife ($)	Husband ($)
Adjusting payment
Total nett assets of $214,695 + $187,031 = $401,726
Adjusting payment from husband to wife of $2,410.36	+ $2,237.00	- $2,237.00

Costs

Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.

I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 15 May 2009

[2009] FamCA 396

15 May 2009

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Consent

Costs

Remedies

Restitution

Statutory Construction