M and B - [2002] FMCAfam 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & B

[2002] FMCA fam 19

PROPERTY – Settlement in relation to marriage.

Applicant:

K M M

Respondent:

D G B

File No:

ZA2631 of 2001

Delivered on:

25 January 2002

Delivered at:

Darwin

Hearing Date:

22 November 2001

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Whittle

Solicitors for the Applicant:

Lesley Hastwell & Associates

Counsel for the Respondent:

Mr Chesterman

Solicitors for the Respondent:

Chesterman Smith & Co

ORDERS

That the husband pay to the wife the sum of $37,665.75, within
90 days from the date of these orders.
That in default of payment to the wife in accordance with Order (1) hereof, the real property situated at 21 F Street, M in the state of South Australia and being the whole of the land contained in Certificate of Title Volume 5174 and Folio 608 be forthwith listed for sale by private treaty for a period of ninety days and sold for the best price obtainable during that period being not less than $108,000.00.
That each party have liberty to apply upon 14 days notice in writing to the other in relation to the sale of the aforesaid real property.
That upon settlement of the sale of the aforesaid real property, the husband pay to the wife the sum of $37,665.75 plus or minus 35% of the difference between the net proceeds of sale and the current value namely $108,000.00.
That each party be solely entitled to the exclusion of the other of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders.
That each party forgo all claims he or she may have to any superannuation or work related benefits belonging to or earned by the other.
That the exhibits tendered in these proceedings be returned to the party that tendered such exhibits within 28 days of these orders.
That all applications be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ZA 2361 of 2001

K M M

Applicant

And

D G B

Respondent

REASONS FOR JUDGMENT

Introduction

The parties seek a determination of the division of matrimonial property.
The parties to the proceedings are K M M (hereinafter referred to as “the wife”) and D G B (hereinafter referred to as “the husband”).
The wife filed an application in form 3 on 9 October 2000. At the outset of the hearing of the matter on 22 November 2001 she filed an outline of case document which sets out the orders she now seeks from the Court as follows:
a)That in full and final settlement of all claims that either party may have against the other for property settlement and spousal maintenance:
i)That the former matrimonial home and the land situated at 21 F Street, M South Australia be sold and the net proceeds be divided between the parties in accordance with the proportions fixed by the Court.
ii)That each party otherwise retain all assets, investments and superannuation entitlements in their name or to which they are entitled.
iii)Such further or other orders as this Honourable Court deems just and equitable.
On 14 March 2001 the husband filed his response in form 3A. In his response he indicates that he seeks the following orders:
a)That each party retain all assets presently in his or her name.
b)Such further or other orders as this Honourable Court deems just.

History of the parties

The husband was born on 12 July 1968. The wife was born on

5 August 1972. Both grew up in the M area of South Australia.
The parties met in January of 1992. They married on 5 October 1996 in M. They separated on 3 May 1999. The marriage between the parties has been dissolved. For the whole period of the marriage the parties lived together at premises situated at 21 F Street, M.
There are no children of the marriage.
The wife has remarried and has given birth to a child. By occupation she is a solicitor. She is currently on maternity leave. She is now known by her married name of M.
The husband is employed as a labourer by G M and has been so employed since 1990. He was employed during the entire duration of the marriage.
The principle issues to be resolved in this matter relate to what occurred between the time the parties met in early 1992 and were married on 5 October 1996. These issues relate to the construction of the former matrimonial home at 21 F Street, M and the financial and other contributions, both direct and indirect, that each made towards its construction.

Principles to be applied

Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of Section 79 provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
i)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
ii)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
iii)The effect of any proposed order upon the earning capacity of either party;
iv)The matters referred to in sub-section 75(2) as far as they are relevant;
v)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
vi)Any child support payable.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors.”
The Court is therefore required to determine the following matters
i)The assets, liabilities and financial resources of the parties to the marriage;
ii)The relevant contributions of each of the parties;
iii)The means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the section 75(2) factors;
iv)After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.

Evidence

The wife relied on an affidavit sworn by herself on 9 July 2001. The husband relied on an affidavit sworn by himself on 31 October 2001. In addition each party gave viva voce evidence in support of their respective cases and each was cross-examined by counsel for the other. No other witnesses were called.
In a general sense I found each to be a truthful witness. They do however have very different recollections of what occurred during the early portion of their relationship prior to their engagement and marriage. I do not think that this was as a result of any disingenuousness on either of their parts but rather flowed from their different perspectives as to what was important at the time and their subsequent reconstruction of events in the light of the dispute between them. The issue of pre-marriage contributions is the most significant area of dispute between the parties and as a result it will be necessary for the Court to make findings of fact in regards to this issue.
I had the opportunity to observe both parties in the witness box and to consider their evidence. In temperament they are quite different people. Although they come from the same small rural community in South Australia their level of education is very different. The wife has a combined law and commerce degree and has practised as a solicitor. The husband left school at sixteen years of age after completing year 11. He has worked as a shop assistant, driver and labourer. I have no reason to doubt that the husband is anything other than a hard working person. Similarly it is to the wife’s credit that she has been able to qualify and then practise as a solicitor. Both have most achieved much in their particular areas of endeavour. In particular it seems that the husband has some considerable skills as a builder’s labourer.
I have no doubt that the wife is a more methodical and better-organised person than the husband is. I regard her as a punctilious person, particularly in regards to financial matters. She also has an ability to live very frugally when occasion demands, particularly when she is working towards achieving some financial goal. She is a person who is able to set herself a budget and stick to it religiously. This ability to exercise fiscal restraint most probably flows from her years as a student on limited funds, who was living away from home and as a result had to make her own way in the world as far as accommodation and living expenses were concerned.
On the other hand the husband is a more “happy go lucky” person, particularly in regards to financial matters. He has always been in receipt of a fixed, if modest income, since the time he left school. Prior to the marriage he lived at home with his parents and was in a situation where he did not have to worry greatly about paying rent or buying food. As a result he could live with the certainty in his mind that income would continue to flow to him and that he would always have access to ready funds. As a result he is not a person who is accustomed to budget scrupulously. He is also a person with a number of interests and past times. These include model aircraft construction, UHF radios and fishing. He is also a person who smokes and drinks. Needless to say all these are activities that cost money.

Contributions prior to marriage

It is clear that pre-marriage contributions may be taken into account as contributions under section 79 of the Family Law Act, regardless of whether the parties were cohabiting or not, provided the parties subsequently marry and the matters have sufficiently relevant connection with the marriage.
Both parties agree that they met in January 1992 and commenced an intimate relationship shortly afterwards. At the time the wife was a university student in A studying to obtain her combined Bachelor of Commerce and Law degree. She comes from a farming family in the M area and during her studies returned there regularly to visit her parents and family at weekends and during university vacations.
The husband is also from M and at the time the parties met lived with his parents there. He worked as a labourer at G M. I accept his evidence that he earned an income of approximately $400.00 net per week.
I accept that the parties formed a serious relationship soon after they met. In the parlance of the husband they began to “go out” together. Theirs was an intimate relationship albeit one conducted with them being very much aware of the sensibilities of a conservative rural community. The wife did not spend the night with the husband at his home but he did spend nights with her at her parents’ home. They spent a large amount of time together during weekends and during the wife’s university vacations. They were not living together in the strict sense of the words. Rather the husband, with the blessing of the wife’s parents, spent nights with the wife at her home whilst he continued to maintain his own residence at his parents’ home.
The respective parents of both the husband and the wife gave their blessings to the relationship and I accept that it flourished. I also accept that they seriously began to talk of marriage by the middle of 1993, although they did not formally become engaged until April of 1995. It seems that the parties believed that it was appropriate that they wait until the wife completed her degree before becoming married. I accept that theirs was a committed relationship and that they spent every available period of time together. Neither of them pursued relationships with other people.
Prior to the commencement of their relationship in 1992, the husband had purchased the block of land at 21 F Street, M on which the matrimonial home was eventually to be constructed. He purchased the land for $10,000.00 in 1986. It was registered in his name. I accept the husband’s unchallenged evidence that he spent further sums of $1,600.00 to erect a shed on the land and $1,300.00 to have water connected to it. There is no evidence of the value of the land at the time the parties commenced their relationship. Thus I am unable to say whether or not it had increased its value since the time of its purchase. However it is clearly a significant matter that the husband brought the land into the relationship.
Construction of the house on the block of land at 21 F Street began in late to mid 1993 or early 1994. The husband asserts it was 1994 the wife that it was sometime in 1993. Nothing turns on this difference. It is the wife’s position that the construction of the house was very much a joint project in which she was an equal partner with the husband. It is her case that the house was built in contemplation of the marriage of the parties as their future matrimonial home and as a result she was intimately involved in all steps of its construction.
It is the husband’s case that when work began on the house it was so that he could provide himself with a house in which to live alone. At that time he was 26 years of age and in his mind getting to an age when it was no longer appropriate for him to live with his parents. Accordingly he took steps to begin construction of the house on the land that he owned outright so that he could live there alone. He deposed that at that time he had no intention of getting married. However in cross-examination he conceded that there may have been discussion of marriage between the parties “in passing” around the time the construction of the house began. Otherwise the husband steadfastly categorises his relationship with the wife as being “boyfriend/girlfriend” at this time.
In my view the truth lies somewhere between the two positions of the parties. However, for the reasons set out hereunder, it is my conclusion that the husband and his father had a significantly greater input into the house, both in a financial sense and through physical labour, during its construction phase than the wife did. As a result it follows that the husband’s contribution was greater than the wife’s prior to the marriage. In this regard I also take into account the fact that the husband brought the unencumbered land at 21 F Street into the marriage.
The wife’s case as to her contribution to the house during its construction phase can be summarised as follows:
a)She lived frugally. Her mother gave her regular amounts of money realising that she was to be married and the house was being constructed in anticipation of that. These sums amounted to between $70.00 and $100.00 each week and were used by the wife in paying expenses incurred by the husband to free up his income to be used in the main for construction of the house.
b)She contributed the sum of $600.00 per year towards the construction costs of the house. This money was her entitlement pursuant to a trust established by her grandmother and was received by her around Christmas each year.
c)She was integral to the design, planning and choice of fixtures in the house.
d)She provided physical assistance and labour to the husband on a regular basis during its construction and was regularly present at the site on weekends.
e)Her mother and aunt contributed curtains and blinds to the house.
f)She provided the sum of $5,000.00 received from her grandmother towards expenses related to the construction of the house.
In order to commence construction of the house the husband borrowed the sum of $25,000.00 from the National Australia Bank. This was secured by way of a first mortgage over the property at 21 F Street, M.
The parties agree that the wife played no part in negotiating the loan and that this was done solely by the husband. It is also common ground between the parties that it was the husband who physically made the necessary payments to the bank to satisfy his responsibilities towards it. In the wife’s words “he controlled the mortgage money and paid for it.” The husband tendered parts of his account statement in respect of the loan commencing from 10 February 1995 into evidence. It was far from a complete record. It shows regular payments of amounts of $180.00 and $200.00 every fortnight.
As I have already indicated during the construction phase of the house the wife was a full time university student with limited means. The wife went straight to university from school and had no savings at that time. Due to her parents’ financial situation she received an Austudy Allowance of $180.00 per fortnight and rental assistance of $25.00 per fortnight from the South Australian Housing Authority. She gave evidence that her rent was $60.00 per week. Her parents assisted her with the purchase of textbooks and the running expenses associated with her car. After rent her major expense was food. On any view her financial situation was tight during the period of time she was a student. I accept that she lived frugally, even so her then financial situation would not leave any significant surplus of funds.
In her affidavit of evidence filed on 23 July 2001 the wife deposed as follows:
“The husband had various hobbies and the bulk of his income throughout our relationship apart from his payment of the mortgage was spent on cigarettes, alcohol and hobbies. It was not uncommon for him to complain that he had no funds and on many occasions I paid his accounts such as his ETSA account and on many occasions I paid for our entertainment, our food and I purchased clothing for the husband as my contribution towards our joint lifestyle. On occasions when the husband visited me in Adelaide on a weekend when I did not go back to M my parents would give me extra monies so that I could pay for our entertainment and often I had to give the husband money to take home with him because he would complain that he had no funds to take home.”
There was no reference in the wife’s affidavit material as to a specific amount of money that was allegedly contributed by her parents or any indication as to the regularity of that payment. In her oral evidence the wife deposed that her parents and in particular her mother would give her the sum of between $70.00 and $100.00 each week, which the wife said was applied to the husband’s bills, entertainment for both of them and to purchase clothing for him. The wife said the sum varied but that when she came home as she usually did on weekends her mother would give her money. This practice began with the construction of the house and in the wife’s view was directly connected with the wish of her parents to help her and the husband to get established.

Neither the wife’s mother nor her father was called to give evidence in the proceedings. The wife explained their absence by indicating that they were acutely embarrassed by what had transpired since the parties separated and for that reason did not wish to become involved.

I accept this explanation. However it makes it difficult to quantify this aspect of contribution, which in any event the husband denies.
In my view the wife did receive some regular monies from her mother and father but that these payments fell short of being weekly. The fact of the payments is understandable given her straightened financial circumstances as a university student. It seems to me that these expenses were applied to both her own living expenses and also to expenses that came up from time to time as a result of her seeing the husband. The parties were seeing each other regularly and to use an old fashioned expression were “courting”. In my view it is not surprising that in such a context the wife would use some of her surplus funds in such a way. I have no doubt that the wife bought clothing for the husband from time to time and paid for entertainment. However this falls far short of an agreement either tacit or explicit that the wife would support the husband to free up his income in order for it to be applied towards the mortgage. As a result I do not believe that this aspect of the wife’s case in regards to contribution can be given any significant weight.
The next matter concerns contributions the wife deposes that she made of monies received by her from a trust set up by her grandmother. A sum of $600.00 was received each year by the wife around Christmas time and in her case was used in relation to the construction of the house prior to the parties’ marriage. In her evidence at trial the wife deposed that this annual sum was always applied “to something to do with the house” and in one year was spent on gardening equipment for the house. The husband denies this. In respect of this matter I prefer the evidence of the wife. In the context of the parties’ then financial circumstances the sum of $600.00 was a significant sum. Given the methodical and frugal character of the wife it seems to me that she would devote such sums to the house.
As I have already indicated the husband’s position is that the house at 21 F Street, M was very much his project. The wife’s position is that it was a jointly planned project. In my view, on balance, I prefer the evidence of the wife in this aspect. It seems to me that the parties had formed an intention to marry when construction of the house began. This was a private intention in the sense that it was confined to immediate members of the parties’ families and of course to the parties themselves and was not formalised by a public engagement until April of 1995. Both the husband and the wife struck me as somewhat cautious and conservative individuals. It would seem to me that both would have accepted the necessity for them to have a place to live prior to them embarking on married life. In this regard I think that it is telling that the husband in his evidence said that the wife with her mother and his mother travelled to A to select tiles for the house. It seems to me that both families accepted that the parties would marry and the house at F Street was to be their first married home.
Both the husband and wife saw the construction of the house as a long-term project. In that sense I accept the wife’s evidence that the house was to be the future matrimonial home from the time that construction began. Accordingly I accept her evidence that she was involved with the planning and design of the house. I accept that she chose fixtures for the bathroom and laundry and selected slate for the kitchen.
However in terms of the technical aspects of its construction and the actual plan selected it seems to me that the husband and his father were the driving forces. In this regard it is telling that the design chosen was a plan based on the husband’s parents home. It seems to me that it was envisaged from the start that the husband and his father were to play the major role in the construction of the house and it was their intention to do this as cheaply as possible by maximising the use of their skill and labour wherever possible.
In my view the husband and his father contributed a significantly greater amount of labour and financial resources to the construction of the house than the wife and her family. I reach this conclusion for the following reasons. Firstly the wife conceded that the husband had far greater expertise in regards to building matters than she did and that he did all the heavy physical labour. The wife’s role was restricted to some painting, staining and putty filling at the direction of the husband. In terms of the actual technicalities of the building the husband was the major contributor. The wife also did cleaning and cooked meals from time to time. That is not to demean this work but in comparison to the actual construction of a house it is in my view substantially less significant work. I accept that the wife spend significant amounts of time at the house with the husband during the construction phase and supported him by her attendance. Secondly it seems to me that the husband made a greater contribution towards the purchase or acquisition in other ways of the building materials used in the construction of the house.
As I have already indicated the husband controlled the amounts of money advanced by way of first mortgage secured against the property. Accordingly the husband bought materials used in the construction of the property. The wife says in her case that “she did not pay for anything substantial” in connection with the construction of the house.
I accept the evidence of the husband that not only did his father assist with physical labour on the house but also made significant financial contribution toward its construction. The wife concedes that the husband’s father paid for the bricklayer and the plumber in respect of the construction of the house. She concedes that the husband’s father paid at least $2,500.00 for the plumber and the bricklayer.
The husband and his father went to some lengths to get materials at the cheapest possible price. I accept that they were able to secure a load of “seconds” brick which though not of premium quality could be used in the construction of the house at a substantial saving. I accept the husband’s evidence that he obtained a quantity of concrete pavers in return for some truck driving work he did. As a result of the expertise of the husband and his father the parties were able to make substantial savings in respect of the construction of the house. Trades people were only brought in when there was a gap in the expertise of the husband and his father. Accordingly construction costs could be held to a minimum. It is in this sense that I find that the contributions of the husband were significantly greater than those of the wife during the construction phase of the house.
I accept the wife’s evidence that her mother and aunt contributed drapes and curtains to the house. Her mother made the curtains and her aunt made the blinds. These were a gift to both parties in anticipation of their marriage.
The wife received a gift of $5,000.00 from her grandmother when she attained the age of twenty in 1992. She banked this money to be used by her for a special purpose at some time in the future. Such an intention is in keeping with her frugal and cautious character. I accept her evidence that in 1995 as the time for the parties marriage drew closer and the house neared completion that this sum was expended on expenses related to the house including the purchase of carpet, carpet laying, gardening materials and other general household items. The husband concedes that the wife also paid for light fittings used in the house.
The house was virtually completed by April of 1995 at which stage the husband began to live in it. The parties became engaged at this time and planned to be married the following year when the wife completed her university studies. She did in fact complete her law degree in July of 1996 and the parties married in October of that year.
At the time of the marriage an amount of $22,619.16 owed in respect of the mortgage. Thus during the construction phase of the house the husband had reduced the principal by a modest amount.
It is common ground between the parties that following their marriage a car owned by the husband and worth some $4,000.00 was sold and the proceeds used to reduce the amount owing on the mortgage. It is also common ground that a further sum of $5,000.00 was borrowed to fund the installation of air-conditioning at the house. This advance was secured by way of the mortgage on the property.
The wife’s parents paid all the expenses associated with the wedding and reception. These expenses amounted to $12,000.00. The wife had a summer vacation job with a firm of solicitors at the end of 1995 and 1996 and was able to save some $3,000.00. This sum was used by the parties together with a further sum of $1,000.00 provided by the wife to fund the parties’ honeymoon. It is the wife’s submission that these amounts should be taken into account as indirect contributions towards the acquisition of matrimonial property. I do not accept this submission as far as the costs of the wedding and the reception are concerned.

Contributions after marriage

Both parties worked during the marriage. The husband continued his employment at G M. The wife commenced employment as a solicitor with G R in January 1997. In her first year of employment she earned $24,000.00. Her salary increased each year thereafter until by the time the parties separated she was earning $33,000.00 per annum. The husband earned $23,000.00 per annum during the period of the marriage together with an additional amount of $2,500.00 per annum he earned from work with the M F S as a part time fire fighter.
The parties were able to discharge the mortgage on the property at 21 F Street in full by March of 1999. This sum included the additional amount of $5,000.00 that had been borrowed for the air-conditioning. During the marriage the parties pooled their incomes and I accept that the wife was responsible for management of their joint funds. Her salary was applied to paying off the mortgage and each of the parties was restricted to a budget. I accept that the wife continued to live extremely frugally. She applied the same rigour to the joint finances as she had applied to her own finances as a student. In my view, as a result of her financial discipline the parties were able to pay off the mortgage as quickly as they did. However this financial rigour was a source of tension between the parties.
Both parties made contributions to improvements on the property during the marriage. The husband build a pergola in the garden and did some landscaping whilst the wife planted a vegetable garden. The external aspects of the property were improved.
The wife was responsible for domestic duties within the home. The husband did repairs and outside work.
The wife was also able to save enough of her wages to purchase a piano for the sum of $2,100.00.
The wife brought into the marriage a number of household items including cutlery and linen that she described as her glory box. She also had a Nissan Pulsar motor vehicle. After the sale of his car the parties purchased a 1981 Ford Econovan for the husband’s use.
The wife is critical of the husband for his expenditure on cigarettes, alcohol and his hobbies during the marriage in contrast to her own financial restraint. In her affidavit evidence she alleges that she paid sums incurred by the husband on his visa card in respect of such things, which were outside the normal budget of the parties.
At the time the parties separated the wife had a HECS (Higher Education Contribution Scheme) debt of $18,879.00. This sum related to the wife’s university fees incurred between 1990 and her graduation in June 1996. This debt was reduced marginally during the marriage.

Matters relevant between separation and trial

The parties separated on 3 May 1999 when the wife left the matrimonial home. The husband has been in occupation of the property since that time. The wife took with her some furniture including the piano, a washing machine and fridge and her glory box items.
As a result of the wife leaving the matrimonial home she borrowed the sum of $6,000.00 from her parents to pay for expenses related to her re-establishment costs. These expenses included rent and bond on new accommodation. She lived alone for a period of six months following the separation and then returned to live with her parents until she remarried on 23 September 2000.
At the time of separation the wife had a visa card debt of $600.00.
The wife has remarried. Her husband, D M is a self-employed electrician. The wife lives with Mr M in a house owned by him. She has given birth to a daughter who is now aged five months. At the time of trial the wife was on maternity leave but anticipated returning to the workforce in 2002. She was planning to return to G R and resuming her position there as a solicitor.
The husband has remained in his employment at G M. He is still earning about $430.00 net per week. He has formed a defacto relationship with Ms C P and has lived with her since July/August 2000. Since separation the husband has purchase an aeroplane for the sum of $27,000.00. This sum was obtained by way of a first mortgage secured against the 21 F Street property. The husband is responsible for mortgage repayments of $150.00 per fortnight in respect of this loan.

The parties’ future prospects

The husband is aged 31. The wife is aged 29. There was no evidence to suggest that either of them is not in good health. The husband has had the same employment for many years as a labourer and has had the same modest salary for some years. He has no formal qualifications apart from the fact that he has learnt to fly recently.
The wife has formal qualifications as a solicitor and now has a number of years of professional experience with a firm of solicitors in the area in which she grew up. At the time of the parties’ separation her annual salary was some $7,500.00 greater than the husband’s was. There is no reason to believe that she does not have good prospects in respect of her legal career.
Both parties have re-partnered and the wife has a child. No evidence was provided as to the income or financial resources of either of the parties’ new partners.
The husband has superannuation entitlements amounting to $11,353.69.
The wife has superannuation entitlements amounting to $3,703.00.
As has already been indicated the wife has a HECS debt of $18,879.00. The wife deposed that she has a debt to her parents of $6,000.00. No evidence was provided as to whether this debt has been paid back and if not when it is due to be paid back.

Assets and liabilities

The parties were able to agree as to the current value of the property situated at 21 F Street, M. They agreed the property was worth $108,000.00. No evidence was available as to the value of the land at the time the parties began their relationship.
The parties were able to agree that the following assets are available for distribution:

21 F Street, M (former matrimonial home)	$108,000.00
1981 Ford Econovan (retained by husband)	$500.00
Furniture and Household Effects (retained by husband)	$4,245.00
Nissan Pulsar (retained by wife)	$900.00
Furniture and Personal Items (retained by wife)	$2,000.00
Total Assets	$115,645.00

In my view there are no joint debts to be taken in account in regards to the division of this sum apart from the visa card debt of $600.00 which the wife took with her at the time of separation and which in my view is a debt of the marriage. In my view it is not appropriate to take into account the wife’s HECS debt. This was a debt that cannot be attributed to the marriage itself. The debt itself has come about as a result of the wife obtaining professional qualifications, which will be of significant benefit to her for the rest of her working life.

Assessment of contributions

As I have already found the husband’s contributions prior to the time the parties married was greater than that of the wife. No evidence has been provided in respect of the value of the land that the husband brought into the relationship at the time of the commencement of that relationship. It is clear in broad terms what the amount of funds that was provided by the parties during the construction phase of the house by means of the mortgage funds available and other funds made available by the parties and by their parents. Given that the parties have agreed as to the value of the property at the present time it is also clear in my mind that the value of the house at the time the parties separated was significantly more than the value of those funds. As a result I have reached the conclusion that the increase in that value is significantly attributable to two main factors. Firstly the land the husband brought into the relationship and secondly the value of the labour and effort that he and his father put into the construction of the house itself. The husband’s efforts in this regard significantly increased the parties’ financial interest in the property at 21 F Street, M and thereby contributed in a major way to the pool of matrimonial property. In my view the expertise and skill of the husband and his father as well their labour has produced this additional wealth.
In my view it is not appropriate to take into account the amount of monies paid by the wife’s parents in respect of the wedding and reception in the distribution of the assets of the marriage.
During the marriage itself the parties were able to discharge the mortgage on the property. This was as a result of the fiscal discipline and frugality of the wife. However both parties worked during the marriage and they pooled their income. In addition each made contributions towards the preservation and conservation of the property during the marriage. They each contributed to the household in their different capacities. As the wife said in her evidence the parties had a traditional division of labour within the marriage.
However I accept the wife’s evidence that during the marriage she displayed considerably greater financial restraint than the husband did and that as a result she assumed greater responsibility for the payment of expenses incurred during the marriage. These expenses included those attributable to the husband’s hobbies and his social expenses.
Taking all these matters into account and in particular the husband’s efforts in building the house referred to above and his existing ownership of the land on which it was build prior to the relationship between the parties commencing, in my view leads to an assessment of contributions up to the time of separation of 70/30 % in favour of the husband.
In my view events since the parties separated indicate that there should be some further adjustment in favour of the wife. The husband has had the benefit of occupying the house for a period of over two years since the parties separated. The wife was forced to borrow money from her parents to re-establish herself. In my view this calls for a further distribution in her favour of 5%.

Section 75(2) factors

The husband is aged 31 years and the wife is aged 29 years. Both can anticipate continuing in the workforce for some time as both enjoy good health. In particular the wife can expect to enjoy a reasonable level of remuneration as a solicitor. In my view it is likely that the husband will continue to remain on around the same level of salary that he has enjoyed for the past few years.

Both parties have re-partnered. The court was not provided with any detailed evidence as to the means or assets of either the husband or the wife’s new partner. The wife has recently given birth to a child.
The husband has a modest amount of superannuation, which however is significantly more than that of the wife. However given the short duration of the marriage and the age and state of health of the parties it is in my view not appropriate that there be any further apportionment in the division of the matrimonial assets due to any of the factors as set out in section 75(2) of the Family Law Act.

Effect of the orders

The conclusions that I have reached mean that the wife will receive 35% of the net matrimonial assets.
As I have calculated the net worth of the matrimonial assets amounts to the sum of $115,045.00. 35% of this figure is $40,265.75. From this figure must be deducted the sum of $2,900.00 being the worth of the assets already in her possession (her car and items of furniture). However she should be credited with the sum of $300.00 being half of the Visa debt she assumed on separation. This means that she should receive the sum of $37,665.75 by way of the distribution of the assets of the marriage.
The husband wishes the opportunity of retaining the property situated at 21 F Street, M and it is appropriate that he be given that opportunity, but if he cannot raise the necessary funds the property must be sold.
For all these reasons the orders of the Court will be those as set out at the commencement of this judgement.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: