M and M

[2010] FCWA 14

[2010] FCWA 14

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	M and M [2010] FCWA 14
CORAM	:	CROOKS J
HEARD	:	28 & 29 MAY 2009
DELIVERED	:	22 JANUARY 2010
FILE NO/S	:	PT 3551 of 2007
BETWEEN	:	M Applicant/Wife
AND
M Respondent/Husband
Catchwords:

Settlement of property in de facto marriage - significant initial contribution.

Adjustment for s 205ZD(3) factors.

Legislation:

Family Court Act 1997, s 205

Category: Not Reportable

[2010] FCWA 14

Representation:

Counsel:

Applicant	:	Mr H Moser
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Paterson & Dowding
Respondent	:

Case(s) referred to in judgment(s):

Briese and Briese (1986) FLC 91-713
Chorn & Hopkins (2004) FLC 93-204
Pierce v Pierce (1999) FLC 92-844
Williams and Williams [2007] FamCA 313

[2010] FCWA 14

1 The dispute to be determined is the division of property between [Mrs M]

[(“Leanne”)] and [Mr M] [(“Ronald”)] who have been unable to resolve financial
claims after being de facto partners for more than 10 years.

Brief background

2 Ronald is aged 60 years and Leanne is aged 33 years.

3 The parties commenced living together in about April 1994 and separated in

August 2004.

4 They have one child together, [Alexandra M] who is aged 10 years.

5 Alexandra has lived with Leanne since her parents separated and on 3 September 2007, consent orders were made which included the following:

(a)	for Alexandra to live with the mother; and
(b)	for Alexandra to spend time with Ronald for periods including each alternate weekend and for one half of Alexandra’s school holidays.

6 Since the separation Ronald has continued to live in the jointly owned home the

parties formerly shared in the northern suburbs. Leanne presently lives with her
current de facto partner and Alexandra in a home owned by her partner.

7 On 21 May 2008, Leanne was granted leave to commence proceedings for property division out of time.

The evidence

8 Leanne was represented by Mr Henry Moser of counsel. She gave evidence and relied upon the following:

(a)	her trial Affidavit filed 24 September 2008;
(b)	Affidavit of her partner, [Ms C], filed 24 September 2008;
(c)	her Form 13 Financial Statement filed 10 March 2009;
(d)	Affidavit of [Mr W] filed 23 March 2009; and
(e)	Affidavit of [Mr B] filed 11 May 2009.

9 Ronald did not seek to cross-examine Ms C, Mr W, or Mr B. There is no reason why I should not accept their evidence.

10 Ronald represented himself at the trial. He did not file any Papers for the Judge

nor did he file one trial Affidavit. Time was taken up on the first morning of the hearing trying to work out precisely what documents Ronald intended to rely upon. After some discussion, Ronald informed me he wished to rely upon four affidavits he

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filed in November and December 2008 together with his Financial Statement and

Valuer’s Affidavit which are detailed as follows:

(a)	his Form 13 Financial Statement filed 25 November 2008;
(b)	two Affidavits filed 12 December 2008;
(c)	two Affidavits filed 25 November 2008;
(d)	his Affidavit filed 8 September 2008; and
(e)	Affidavit of [Mr D], a Valuer, sworn 5 September 2008.

11 Mr D was not required for cross-examination.

Observations of the parties

12 It was submitted by Leanne’s counsel that Ronald set out to deliberately avoid

his disclosure obligations and unless his evidence was supported by documentation or
conceded by Leanne I should not accept “anything Ronald says.”

13 On 20 April 2009 Leanne filed an application seeking, amongst other things, that

Ronald provide a disclosure list of documents verified by affidavit which was to include a long list of documents specified in the application.

14 A copy of the application and supporting affidavit was forwarded to Ronald by

letter from Leanne’s solicitors dated 20 April 2009 which advised Ronald the matter was listed for hearing on 29 April 2009. The letter further advised Ronald “you must attend this hearing”.

15 Leanne’s application was brought against a background of Ronald having failed

to provide a disclosure list, even though he was previously represented by lawyers who, Ronald conceded, advised him of his disclosure obligations. Ronald failed to attend the hearing on 29 April 2009 and I made orders for him to provide disclosure by 8 May 2009. Although I am satisfied the orders were received by Ronald within a few days of the hearing, no disclosure list was provided.

16 I have reservations about the reliability of Ronald’s evidence and I am satisfied Ronald failed to discharge his disclosure obligations.

17 At times Ronald’s evidence was contradictory. For example, when questioned

about the $25,000 it was agreed he paid to Leanne’s mother Ronald said, at first, he made the payments to Leanne’s mother totalling this amount over 10 years. He later said he paid the amounts between 2000, when he sold his interest in the business and 2004 when the parties separated. This appears more likely. He was asked the source of the funds paid to Leanne’s mother and he answered from his salary over the four years and “some of it” from the business proceeds. Ronald could not have paid funds from his salary because the parties agree he did not start work until after they finished the property renovations business which followed the parties’ separation.

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18 At other times I had the impression Ronald was prepared to conceal the true

position from the Court if he thought it might help his case. For example, in Ronald’s Financial Statement filed 3 July 2008 he said at paragraph 45 the gross value of his superannuation entitlements with MasterKey was $37,400. Ronald was questioned about why the value of his MasterKey fund had fallen to $6,000 when he completed his updating Financial Statement filed 25 November 2008. Ronald said his fund held international shares which had gone down due to the “world recession”. Ronald provided no documents to verify the drop in value of the fund and Leanne’s counsel called for Ronald to produce the statements from MasterKey when his cross-examination resumed the following day. At this point, Ronald disclosed for the first time he had also made withdrawals from the fund and received “about $12,000”. I regard this evidence from Ronald as particularly unsatisfactory.

19 Ronald also conceded during cross-examination he requested Leanne to hold the

boat he purchased prior to separation in her sole name to minimise his former wife’s property settlement entitlements. Leanne agreed to do this for him. After the parties ceased living together, it appears Ronald completed a declaration with the licensing authorities claiming he was the owner of the boat which then enabled him to sell the boat without having to get Leanne’s signature on any transfer documents. The fact that Ronald was prepared to be manipulative by trying to minimise his former wife’s property entitlement in this fashion reflects poorly on him.

20 I was far more impressed with Leanne as a witness. Although her recollection of

some of the past financial history was not always accurate, I was satisfied Leanne did her best to answer questions that were put to her in an honest and direct way and was generally responsive to the questions put to her. She was prepared to readily concede Ronald was a good father to Alexandra and that he worked hard in the business and the property renovation venture the parties started before their separation.

21 For these reasons, I have concluded that where there is a dispute between

Leanne and Ronald which comes down to his word against hers, Leanne’s evidence is to be preferred unless otherwise stated.

22 Although this is not a case where I find Ronald has any significant hidden assets,

his failure to meet his disclosure obligations and the unsatisfactory nature of certain aspects of his evidence has meant Ronald has not been able to prove, on the balance of probabilities a number of his assertions. These failures will be reflected in my conclusions as to the assets and liabilities to be included in the asset pool for division between the parties.

Position of the parties at trial

23 Leanne seeks 50% of the assets. Ronald offers Leanne no cash payment for her

interest in the property. He seeks that Leanne transfer her interest in the property to him and otherwise retain the assets she presently has which is virtually nothing after taking her debts into account.

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Property proceedings – the law

24 The parties lived in a de facto marriage relationship and these proceedings are therefore governed by s 205ZG of the Family Court Act 1997.

25 The determination of an application under this section involves a four step process which can be summarised as follows:

(a)	to ascertain and value the property of the parties;
(b)	to determine the contributions made by the parties to the property;
(c)	to consider the factors set out in s 205ZG(4) and s 205ZD(3) which include the parties’ future needs, income earning capacities, responsibilities and resources; and
(d)	to finally reach a decision that is just and equitable in all the circumstances.

The assets

26 The parties’ most significant asset is the property which they agreed should be valued at $410,000 and the outstanding mortgage debt is $221,000.

27 The parties could not, however, agree on the value of other assets. Nor could

they agree on whether the value of certain items which have ceased to exist, namely a boat and Landcruiser, should be notionally added back to the asset pool for division between them. I now consider those items which could not be agreed.

Household contents and motor vehicles

28 No agreement was reached about the value of these assets. One of the orders

I made on 29 April 2009 was to appoint Mr B, an experienced valuer, as Single Expert to value the vehicles and contents held by each of the parties.

29 Mr B says he telephoned Ronald on 4 May 2009 to get access to his items to

prepare the valuation. At the time of the call, Ronald was working. Ronald agrees he told the valuer he could not leave work then and there to return home for the inspection and further said he would have to “break in” if he wanted to inspect the items at that time. Regrettably, it appears neither Ronald nor the valuer tried to arrange another inspection time and because the valuer could not get access to value Ronald’s items when he first tried, he was instructed not to value Leanne’s items. The end result of this was there was no evidence of the value of these items from either party.

30 In his Financial Statement filed 25 November 2008, Ronald estimates his Mitsubishi motor vehicle to be worth $5,000 and his household contents about $1,000. In his earlier Financial Statement filed 3 July 2008, Ronald valued his vehicle at $10,000 and his contents at $3,000. Ronald concedes the value for his household items does not, however, include any amount for the movable spa and gazebo which

[2010] FCWA 14

were purchased about eight years ago for $15,000. Ronald says he changed his estimate of the value of his vehicle after speaking to a car dealer who told him it was not worth $10,000. No statement was received from the car dealer and on further questioning, Ronald conceded the sum of $5,000 was the amount the dealer was prepared to pay for it not what it could be sold for.

31 Leanne says Ronald’s motor vehicle is worth $10,000 and estimates the value of

Ronald’s household contents at between $5,000 and $6,000 without the spa and gazebo. Her counsel submits I should accept Leanne’s estimate and increase the value of Ronald’s contents by $5,000 for the spa and gazebo to give a total of approximately $11,000.

32 I intend to include a value of $3,000 for Ronald’s household contents and

$10,000 for his Mitsubishi vehicle. These are the values which Ronald placed upon the items in his Financial Statement filed 3 July 2008. Whilst Ronald reduced these values in his most recent Financial Statement, no valuation evidence was provided to support the variation in values and I intend to use Ronald’s earlier figures.

33 I accept the figure of $3,000 for Ronald’s household items fails to include any

amount for the gazebo and spa. Neither party, however, took any steps to have Mr B complete his valuation after the first attempt failed and I have no evidence upon which I can determine what, if anything, these items are reasonably worth.

34 Leanne left the family home with very little, if any, of the household furniture

acquired by the parties. Leanne agrees that since the separation Ronald paid for new household items for her and Alexandra. Leanne says and I accept, she also purchased a video camera and digital camera with funds borrowed from a GE Creditline facility. I intend to include the value of $3,000 for Leanne’s household contents including the cameras. Ronald did not suggest Leanne’s items were worth more than $3,000 and in the absence of any valuation evidence, I intend to accept Leanne’s estimated value.

35 Leanne says and I accept, she owes RAC Finance $7,174 on the purchase of her

Ford motor vehicle post-separation. She values her vehicle at $6,000. Leanne had the option of obtaining valuation evidence for her vehicle from the Single Expert but did not do so. In the absence of such evidence, I do not intend to place a value for the vehicle which is less than the figure owing on the RAC loan. I do not intend to include either amount in the asset pool but rather intend one should offset the other.

Tax debt

36 Ronald says at paragraph 48 of his Financial Statement filed 25 November 2008 he owes $5,600 in assessed income tax. After Ronald’s cross-examination, it became clear he did not owe any income tax but rather [TCIPL] as Trustee for the RM Family Trust, through which Ronald operates his business, owed GST of approximately $5,400 at 4 June 2009.

37 Ronald commenced his new business after separation. The pay records

produced (Exhibit 7) show the Trust is remitted a gross income amount for Ronald’s work which includes a 10% GST payment. There is no suggestion the Trust distributes any of this income to Leanne. I do not intend to include the GST liability

[2010] FCWA 14

of the Family Trust as a liability in the asset pool for division between the parties. In my view, it would be unfair to Leanne to include the GST liability when Ronald has received the benefit of the funds, including the GST payments and this liability did not exist when the parties separated.

Credit card debts and bank loan

38 In his Financial Statement filed 25 November 2008, Ronald discloses amongst

his liabilities:

Commonwealth Bank loan (Item 50)	$ 5,000
Two NAB credit card debts each of $5,000	$10,000
(Item 51)

39 At the trial Ronald produced statements for the two NAB credit cards for

March/April 2009 which disclosed Ronald owed $4,994.72 at 24 April 2009 on one card and $4,733.23 at 14 April 2009 on the other.

40 These two credit card statements are the only credit card statements disclosed by

Ronald.

41 It was put to Ronald that his credit card debts were run up after separation which

he disputed. Ronald says he owed significantly more on his credit cards at separation than he presently owes. Leanne requested that Ronald give disclosure of his NAB credit card statements from the time of separation and I made orders to this effect on 29 April 2009. Ronald wrote to the Court on 6 May 2009, presumably after receiving a copy of my orders (Exhibit 3), in which he said with reference to disclosure of his credit card statements from the time of separation:

“6) Copies of my current National Australia Bank card can be provided at the hearing as the previous statements are not applicable as the Applicant left 5 years ago and the total amount owed changes each month. Statements for the month of May can be provided when received from NAB.”

42 Ronald was further ordered to disclose copies of statements relating to any bank

account he has operated from the time of separation and in paragraph 5 of his letter
dated 6 May 2009 said this:

“5) All copies of my bank account (sic) from the date of separation until current are irrelevant to the case as the Applicant left 5 years ago. I could provide latest copies of my April financial statements at the hearing if necessary.”

[2010] FCWA 14

43 When dealing with the obligation on parties to disclose their financial circumstances, Smithers J in Briese and Briese (1986) FLC 91-713 at 75,180 said:

“I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.

…

In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.”

44 Ronald did not suggest the NAB was unable to provide copies of his credit card

records if he did not have them. Leanne requested and the Court ordered that Ronald give disclosure of the statements. Leanne did not make any reference to any credit card liabilities in her trial affidavit when she set out her understanding of the financial position of the parties at the time of separation in her trial affidavit (paragraph 18) and the request for disclosure of these documents should have left Ronald in little doubt Leanne was requiring him to prove the existence and nature of his bankcard expenditure. Because of Ronald’s failure to provide proper disclosure and my concerns about his evidence as earlier noted, I do not intend to include Ronald’s present credit card debts in the asset pool for division between the parties.

45 Ronald also failed to disclose any statements relating to his Commonwealth

Bank liability, apart from a single statement showing two transactions between 1 April 2009 and 8 May 2009 which forms part of Exhibit 14. His letter dated 6 May 2009 said the following in relation to the Commonwealth Bank loan:

“7) The Respondent has not made any loan applications in the last 7 years. The Commonwealth Bank referred to in Item 50 of the Respondents form 13 financial statement is an overdraft not a loan as per information previously supplied to the Family Law Court.”

46 The balance outstanding to the Commonwealth Bank at 8 May 2009 was

$4,903.63. Apart from this overdraft account, Ronald also operates an account for TCIPL with Westpac. Income from Ronald’s business is deposited into the TCIPL

[2010] FCWA 14

Investments Account, the balance of which fluctuates from pay to pay. The account had a closing balance of $1,165 on 14 May 2009. I do not intend to include Ronald’s overdraft account with Commonwealth Bank or the credit balance in the Westpac account operated by TCIPL in the asset pool. Both accounts fluctuate during any month and the lack of proper disclosure prevents me from considering the type of expenditure incurred by Ronald on his overdraft account.

Addbacks

47 The general principle which applies to addback claims is that funds reasonably

disposed of by parties in conducting their affairs post-separation should not usually be
added back. Chorn & Hopkins (2004) FLC 93-204.

Proceeds from sale of boat and Landcruiser

48 Leanne seeks to notionally add back to the pool of assets two amounts of

$30,000 which I accept Ronald received from selling a boat and Landcruiser vehicle
which were acquired whilst the parties were living together and sold after separation.

49 Leanne does not suggest the amounts of $30,000 were less than the reasonable

values for the boat and Landcruiser at the time of sale. Indeed $30,000 is the estimate of value Leanne placed upon the items in her table of assets and liabilities existing at the time of separation (paragraph 18 of her trial affidavit).

50 Ronald deals with the boat proceeds at paragraph 12 of his affidavit filed 8 September 2008 where he says:

“12)	The boat sold for $30,000. Leanne did not pay for any of the boat. Spent:
$10,000 to fix ute
$3,150 to fix wall
$3,390 to pay Leanne’s phone bills
$3,000 to buy second car
$6,500 child support
$1,000 on Alexandra
$10,000 on new furniture and bond
$4,000 cash to Leanne
$3,000 on the 5th of December 2005 for Christmas spending money

Total= $40,890 with no wall repayments put into this figure.”

[2010] FCWA 14

51 Clearly, not all of these payments could have been met from the boat proceeds.

As Ronald himself notes, the payments listed total nearly $11,000 more than the amount received for the boat without including the costs of repairs to the wall damaged by Leanne which Ronald initially paid. Ronald said he did not know whether the proceeds of sale were deposited in the TCIPL account with Westpac or in his personal Commonwealth Bank account and as earlier noted he produced no statements relating to either account, other than the most recent statements.

52 Ronald conceded some payments included in his list of payments were likely to

have come from his courier income. For example, Leanne agrees Ronald did pay about $3,390 for her telephone bills but says these funds were not paid in a lump sum but over some three years, which I accept was the case. Ronald also conceded the sum of $6,500 he says was paid in child support was the total of his assessed child payments made over time, not any lump sum payment. This also applied to the $1,000 which Ronald claims to have spent on Alexandra. This was the total of what Ronald says he spent on his contact periods with Alexandra.

53 Ronald also conceded the $3,000 cash I accept he paid to Leanne, was included

in the payment of $4,000 which is separately listed. There has therefore been a double
counting to the extent of $3,000.

54 The sum of $3,150 from Ronald’s list is the amount I accept he paid to

Wesfarmers Insurance to settle a claim brought by the insurance company against Leanne for damage she caused to the brick wall of a property she struck in a motor vehicle incident in January 2006. There is no dispute that Ronald paid out this amount for Leanne but he did so on the basis that Leanne would repay the amount by foregoing child support payments of $70 per week for the period from 28 August 2006 to 9 July 2007, which took place (Exhibit 13).

55 In relation to the Landcruiser, Ronald says he bought his present vehicle for use

in the business. Again, he provided no disclosure as to the sale of the Landcruiser or
the purchase of the Mitsubishi to verify the sale and purchase details.

Discussion and conclusions on $60,000 addback claims

56 Whilst Leanne agrees she received a number of the payments set out in Ronald’s

list, her counsel submitted the two amounts of $30,000 should be added back because the Court could not be satisfied the payments Ronald made for Leanne and the purchase of his work vehicle, were not met from draw-downs on the house mortgage, rather than from the sale proceeds of the boat and Landcruiser.

57 It is not in dispute that the parties would draw down on their equity in the

property to meet interest payments and renovation costs on the three properties which
were purchased to renovate and resell.

58 Ronald’s accountant, [Mr N], prepared a report dated 11 November 2008 which

is annexed to Ronald’s affidavit filed 25 November 2008. It shows overall losses of approximately $50,000 on the three properties. This amount differs from the figures Ronald set out in his affidavit filed 25 November 2008 which claims losses overall on the three renovations were around $80,000. Ronald says the difference between his

[2010] FCWA 14

figures and those from his accountant arises from cash payments he made to tradesmen who worked on the renovations which were not included in the accountant’s figures.

59 Although Ronald failed to produce the various receipts to enable his figures to

be verified, his evidence about the cash payments to tradesmen was not shaken in
cross-examination and appeared credible.

60 Leanne’s counsel further submitted that even if the Court accepts that losses of

around $80,000 were incurred on the renovations, then as much as $140,000 from the mortgage debt remains unexplained. This is the difference between the current mortgage debt level of $221,000 and the sum of around $80,000 which Ronald claims was lost overall on the venture.

61 The parties agree that some time after separation they refinanced the amount then owing under the housing mortgage to an interest only facility.

62 Ronald says the mortgage debt has not significantly increased since the

separation. He does not, however, produce statements for the mortgage account to
enable what he says to be verified.

63 When dealing with the credit card liabilities, Ronald’s failure to provide

disclosure of the statements to support his case was fundamental to my conclusion not to include these liabilities in the asset schedule. In this instance, however, different considerations apply. The house mortgage is the joint obligation of the parties which they refinanced after separation. Whilst the original statements may have been sent to Ronald, it was not suggested Leanne was unable to contact the mortgagee herself to obtain copies of any statements Ronald failed to disclosure. If Leanne was forced to incur costs unnecessarily to obtain these copies, then it would be open to her to seek an order that Ronald pay her costs at the conclusion of the proceedings.

64 If the prospect of Ronald making draw-downs on the housing mortgage account

to pay the amounts for Leanne and to fund his motor vehicle whilst concealing what he did with the proceeds of the Landcruiser and boat was a serious concern, it is difficult to understand why Leanne did not obtain copies of the mortgage statements herself. This is particularly so given Ronald’s failure to provide a proper disclosure of his mortgage statements. That said, I do not accept there was $140,000 (or any other substantial amount) that cannot be explained from the mortgage account as submitted by Leanne’s counsel.

65 It is not disputed that neither party worked after the sale of Ronald’s interest in

the previous business and they lived for a time on what was left from the sale
proceeds.

66 The parties agreed that Ronald received $200,000 from selling his interest in the

business and he also received funds from a superannuation entitlement which
presumably he cashed in after he left the print business.

67 Ronald says, and Leanne did not dispute, that the parties applied the funds received following the sale of the print business roughly as follows:

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• $20,000 – repayment of initial deposit borrowed from Ronald’s brothers for the house purchase;

• $135,000 – to discharge the mortgage debt for house purchase;

• $15,000 – purchase of spa and gazebo for the house;

• $2,000 – air conditioning;

• $1,200 – security doors;

• $30,000 – boat purchase;

• $46,000 – Landcruiser purchase;

• $30,000 – caravan purchase.

$279,200 – Total

68 Ronald says the cost of the Landcruiser was paid from his superannuation funds

and the caravan was also likely to have been paid from this source. I accept this to be the case. Otherwise the figures do not add up given there is no suggestion the parties had any significant savings at the time which could have been used to fund these purchases nor were they earning income at the time.

69 Ronald says he started drawing down on the housing mortgage account to meet

the parties’ living expenses from 2003 when the parties started a property renovations business. I consider the mortgage draw-downs may well have started earlier given the amounts paid out on the various purchases I have mentioned and other costs the parties agree were made including the $25,000 in payments made to Leanne’s mother over a number of years. As best I can determine, however, I accept that by not later than 2003 the parties were meeting their living costs and other commitments to a very large extent from funds drawn-down on the housing mortgage which was also being used to finance the property renovations and borrowing costs which overall incurred significant losses. It was not, in my view, a case of the overdraft debt being used only to fund the renovation work and the losses resulting from the venture.

70 Whilst I am unable to determine precisely what was paid from the boat and

Landcruiser proceeds because of the unsatisfactory state of the evidence, I am not satisfied the justice of the case requires the sum of $60,000 to be added back to the asset pool, particularly for the following reasons:

(a) Leanne acknowledges the utility was damaged in January 2006 whilst she was driving and no insurance claim was made to cover the repair costs because she had been drinking at the time of the accident. Ronald paid the costs of the repairs and although Ronald did not produce any invoice or receipt from the panel beaters to verify the amount spent, Leanne’s counsel acknowledged the existence of a cheque butt from Ronald recording a payment of about $9,000 to a firm believed to be the panel beaters who did the repair work. I am satisfied, on balance, this was the amount paid for repairing the damage;

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(b)	Leanne agrees she received items from suppliers, Harvey Norman which Ronald paid for. I am satisfied from the cheque butts (Exhibit 16) that Ronald spent following the separation between $8,000 and $10,000 getting Leanne established in rental accommodation and buying goods from Harvey Norman;
(c)	I accept Ronald spent approximately $3,000 on a Ford Corsair for Leanne after she damaged the utility;
(d)	Leanne agrees she received $3,000 cash from Ronald in late 2005; and
(e)	there is no dispute that after Ronald sold the Landcruiser, he purchased the Mitsubishi used in the current business. Although no documents were produced to verify the purchase details, I am not satisfied Ronald would have had access to funds from any other source to acquire his current vehicle. Nor am I satisfied the costs of the work vehicle would have been substantially less than the amount received for the Landcruiser.

Addback for withdrawal of superannuation funds/and legal fees

71 Ronald drew down on his superannuation entitlements as noted earlier and on

the second day of trial he produced a report from financial advisors, [M & Associates] which detailed movements in Ronald’s fund with MasterKey between 28 May 2007 and 27 May 2009 (Exhibit 9). This report confirmed Ronald’s fund as having a withdrawal value of $7,515 at 27 May 2009 after Ronald withdrew amounts totalling $20,500 in July and November 2008. I accept these withdrawals are likely to incur a tax liability in the region of about $5,000. Ronald says he used the superannuation funds as follows:

(a)	payment of lawyers fees - $9,642;
(b)	payment of insurance premium - $2,918; and
(c)	balance - on living expenses.

72 Ronald’s evidence that he was without income for some eight weeks in late 2008 whilst in between jobs, was not successfully challenged by Leanne and I accept Ronald did pay his legal fees and insurance premium in the amounts mentioned.

73 This is an appropriate case, in my view, where the amount spent by Ronald on

legal fees from the superannuation monies withdrawn should be notionally added back to the asset pool. Whether Ronald’s superannuation is treated as an asset or a resource, the value of the superannuation was relevant to the outcome of these proceedings and Leanne had an interest in the value of those funds which have been reduced by Ronald’s withdrawals. To do otherwise would be unfair to Leanne. I am not satisfied it is appropriate to add back any further amounts from the superannuation funds withdrawn.

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74 The costs notification advice Leanne received shows she has paid legal fees of

$22,000 and will have further costs to pay for the trial of about $15,000. I was informed by Leanne’s counsel that Leanne took out a bank loan of $25,000 to help fund her legal fees. Leanne’s counsel did not seek to include her paid or outstanding legal fees in the asset pool nor to include the bank loan taken to fund the fees. In my view, this is appropriate.

Conclusion on asset pool

75 For these proceedings, I determine the parties have the following pool of assets, liabilities and resources for division:

Assets	Ronald	Leanne
The home property (agreed value $410,000)	$205,000	$205,000

Leanne’s contents	3,000
Ronald’s contents	3,000
Ronald’s Mitsubishi	10,000
Proceeds received by Ronald from withdrawal of his superannuation and used for legal fees (added back)	9,642

Total assets	227,642	208,000
Liabilities
Mortgage debt on home property – (agreed at $221,000)	110,500	110,500

Leanne’s GE Loan 2,459

Total liabilities	110,500	112,959
Net assets	117,142	95,041
Resources

Ronald’s superannuation	7,515
Leanne’s superannuation	10,042

76 The parties have total net assets of $212,183 and total superannuation benefits of

$17,557.

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Contributions

Position of the parties

77 Leanne asserts the parties’ contributions overall including Ronald’s initial

contributions call for an assessment of 60% in Ronald’s favour. Ronald argues that Leanne should not be paid any funds given what she has already received and presumably having regard also to the assets he brought to the relationship.

Initial contributions

78 When the parties commenced living together, Ronald had a 25% interest in

a business [“MP”] and was working full-time in the business. Leanne agrees Ronald was earning more than $100,000 per annum. It is not in dispute that Ronald also had superannuation benefits when the parties started living together as earlier noted.

79 Whilst I am unable to determine the value of Ronald’s interest in the business

when the parties commenced living together, it is agreed as earlier noted Ronald was paid $200,000 for his share in the business in 2000. Leanne accepts that these funds were spent for the parties’ joint benefit. It is likely this also applies to the superannuation funds Ronald received. Because, however, I am unable to determine the value of Ronald’s superannuation when the parties started living together and the likelihood, in the absence of evidence to the contrary that those benefits increased in value after 1994, I do not intend to give Ronald’s superannuation any significant weight as an initial contribution brought to the relationship.

80 Leanne was about 19 years of age when the parties started living together. She

was working for a similar business and her assets were limited to a small equity in
a motor vehicle she was paying off.

81 There can be no doubt that Ronald made the overwhelmingly greater financial

contributions to the relationship. To a very significant extent, what the parties presently have can be attributable to the interest Ronald had in the business when the relationship commenced.

Contributions during the relationship

82 As earlier noted, after the parties started to live together, Ronald continued to

work full-time in the business from which he earnt a significant income until it was sold in 2000. Leanne also worked on a full-time basis at various jobs until about early 1999 when she was in the late stage of her pregnancy with Alexandra.

83 I am satisfied each of the parties contributed from their incomes towards the

household expenses, although Ronald’s financial contribution was greater because of
his much higher income.

84 After living in various rental homes, the parties purchased the home in their joint

names in 1998. It cost about $155,000. The sum of $20,000 was borrowed from

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Ronald’s brothers and the balance of the purchase price, about $135,000, was borrowed from the National Australia Bank.

85 As earlier noted from the $200,000 Ronald received for his share in the business,

he repaid his brothers the $20,000 owing and paid off the NAB housing loan which was about $135,000. From the balance remaining, the parties agree they made improvements to their property and purchased the items I have mentioned.

86 Neither of the parties sought employment following the sale of the business.

Leanne breastfed Alexandra for the first six months of her life and I accept both parties contributed to Alexandra’s care.

87 In 2003 the parties purchased the first of three houses which were renovated

with the intention of resale for profit. The properties were acquired by TCIPL Investments as Trustee for the RM Family Trust and the house was used as security for repayment of the funds borrowed for the renovation work as earlier noted.

88 I accept both parties were involved in the renovation works that were undertaken

and continued after the parties’ separation. The final house was sold in November 2005. Mr W was contracted by Ronald to do various works at the properties in the northern suburbs. He says Leanne worked with him eight to ten hours per day on three or four days each week helping do whatever was required to renovate the properties. I accept Leanne assisted with painting, tiling, deliveries and general tidy ups of both internal and external areas to the properties. Mr W further says Leanne worked with him over a period of some eighteen months without getting paid for the work that was undertaken. Mr W was not required for cross-examination and there is no reason for me to doubt his evidence.

89 I am satisfied that although the renovation venture lost money overall, both parties worked hard and did their best to make the project a success.

90 Ronald disputes that Leanne had the major role in parenting Alexandra prior to

the parties’ separation, particularly after he gave up work in 2000. He also disputes that Leanne’s homemaking role was greater than his own. Leanne acknowledges Ronald was a good father and whilst I am satisfied he did assist with Alexandra’s care prior to the parties’ separation, in my view, her contributions overall in the parenting role were greater than his. I am also satisfied Leanne did the greater share of the cooking and other household chores when the parties were together although Ronald’s contributions were nonetheless significant, particularly after he sold his interest in the business.

91 In his affidavit material, Ronald seeks that I take into account the $25,000 in

payments made to Leanne’s mother before the parties separated. These payments do not constitute contributions of the kind set out in s 205ZG(4). In my view, such payments could only be relevant to the exercise of the Court’s discretion under the factors in s 205ZD(3). I will deal with the husband’s contention concerning these payments when I consider these relevant factors.

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Conclusions – contributions during cohabitation

92 The parties lived together for about 10 years and during this period I am satisfied both made significant contributions and worked hard.

93 Ronald’s financial contributions from income were significantly greater than

Leanne’s until he stopped working but Leanne did contribute as best she could from her earnings until she stopped working to have Alexandra. As earlier noted, I accept Leanne’s non-financial contributions as a homemaker and parent were greater than Ronald’s but his contributions were significant, particularly after he ceased work following the business sale.

94 In my opinion, the parties overall made equal contributions during cohabitation

as opposed to the contributions from the capital which Ronald brought to the
relationship.

Post-separation

95 As earlier noted, Ronald has lived at the home and Leanne since the separation lived in rental accommodation before moving in with her de facto partner in 2008.

96 I accept Ronald has met all of the housing mortgage repayments which he says are $462 per week and has also paid the usual house outgoings which he says total $83 per week. Whilst I take these payments from Ronald into account, he has enjoyed the benefit of living in the home which the valuer Mr D, says, and I accept, has a rental value of $380 per week. I also accept Ronald’s earnings were greater than Leanne’s earnings from her part-time work once he started his current work.

97 When the parties separated, they agreed Ronald would contribute $100 per week

towards Alexandra’s support. It is not suggested Ronald has failed to meet his child
support obligations.

98 Since separation Leanne has had the main responsibility for Alexandra’s care.

She has lived with Leanne and has spent time with Ronald on alternate weekends and for part of the school holidays. Ronald does not criticise Leanne about the way she has provided for Alexandra’s physical needs and Leanne does not suggest Ronald has failed to spend the time with Leanne as he was entitled. There is also no evidence to suggest Ronald has failed to properly care for and maintain Alexandra during those times.

99 Both parties continued to work hard on the renovation work following the separation and I accept neither was paid wages for their work.

100 In my opinion, overall the parties’ contributions in the period after separation to the trial should also be assessed as equal.

Impact of Ronald’s initial contribution

101 When considering the significance of initial contributions, the Full Court in

Williams and Williams [2007] FamCA 313 referred with approval to the decision of

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the Full Court in Pierce v Pierce (1999) FLC 92-844 and said this at paragraphs

27 and 28:

“27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:

… respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.

28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:

In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”

102 In my view, Ronald’s initial contribution to the relationship of his interest in the

business which sold for $200,000 must be given very substantial weight. It enabled the parties to repay the $20,000 deposit borrowed for the purchase of the house and to fully repay the mortgage debt of about $155,000. Although the house was purchased more than 12 months before Ronald sold his interest in the business, the purchase was fully financed and then totally paid off when the business proceeds were received. The property now has an agreed value of $410,000. There is no evidence to suggest that the increase in the value of the property since its purchase can be attributed to any significant improvements made by the parties during their time together. The funds which remained from the business sale proceeds also benefited the parties as earlier noted.

103 After taking into account all of the respective contributions from Ronald and

Leanne since they started living together and putting appropriate weight on the overwhelmingly greater initial financial contribution, I assess the parties’ contributions overall to the property as being 67% to Ronald and 33% to Leanne. On this basis, Ronald’s entitlement in monetary terms is $142,163 plus his superannuation and Leanne’s entitlement is $70,020 plus her superannuation. The difference in money terms if $72,143.

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Section 205ZD(3) factors.

104 Leanne’s counsel submits there should be an adjustment of 10% for the relevant factors on the basis that the parties’ contribution based entitlements are assessed 60% in Ronald’s favour. Otherwise, it is submitted, there should be such adjustment as will result in the asset pool being divided equally.

105 I now turn to consider these factors.

(a) the age and state of health of each of the de facto partners;

106 Leanne is 33 years old. There is no evidence to suggest that Leanne is suffering from any health problem which might prevent or impact on her working in the future.

107 Ronald is 60 years of age. Leanne does not dispute Ronald has suffered from

a stroke. Ronald produced no medical evidence as to the likely impact the stroke would have on his ability to work in future years. Ronald says he intends to continue his current work “as long as I can”. Whilst Ronald’s stroke is obviously a concern, he does not suggest it has significantly reduced the number of years he has left to work. That said, given that Ronald is already 60 years of age, it is unlikely he will have many years of reasonably paid working life ahead of him. This is clearly a relevant factor, given that Leanne is some 27 years younger than Ronald and has the capacity to work for many more years than him.

(b) the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment;

108 Leanne, in her Financial Statement says she is employed as a part-time sporting

instructor for which she is paid about $380 per week. Leanne’s income also included a Single Parenting Payment, the Family Tax Benefit and child support from Ronald of $388 per month.

109 As earlier noted, when the parties commenced their relationship, Leanne was

working for a business and continued to work until late in her pregnancy with Alexandra. Before taking on work as a sports instructor, Leanne had other part-time work, apart from the home renovation enterprise which involved both parties from about 2003 until 2005.

110 Leanne intends seeking a career with the WA Police Force and has applied to become a Police Recruit at the academy. If accepted, Leanne will earn about $42,000 per annum during her period at the academy. No evidence was led as to what Leanne is likely to earn as a Police Officer if she successfully graduates. Leanne does not dispute she has the physical and mental capacity for appropriate gainful employment including full-time work if she graduates as a Police Officer.

111 In Ronald’s Financial Statement filed 25 November 2008 he gave his income

before tax as $1,081 per week. Although not disclosed until he was cross-examined, since about late December 2008 Ronald has been earning significantly more than this amount. Through TCIPL, Ronald contracts to TIPL. From documents provided to Leanne’s counsel at the trial (Exhibit 8) payments from TIPL from 21 December 2008

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until 10 May 2009 totalled $37,123 inclusive of GST totalling $3,712. The net income figure is $33,411. If Ronald continues to earn at this rate for, say, 48 weeks a year, his annual gross income will be approximately $76,000 per annum, less tax and business related expenses.

112 The tax return for the RM Family Trust for the period ended 30 June 2008 shows

the Trust has accumulated tax losses of $102,990 which are losses carried forward from the tax years 2003/04, 2004/05 and 2005/06. These losses presumably arose from the property renovation work carried out through the Trust. Ronald agrees these losses can be used to offset his income from the current business and mean that Ronald will pay no income tax until the losses have been used up. Whilst I am unable to determine the precise period when Ronald will pay no tax on his income, it is clear he will be the party who will benefit from the tax losses, not Leanne. This will give him a significant benefit.

113 The Trust return for 2007/2008 tax year claimed business related expenses of $19,205 made up as follows:

Depreciation	$ 4,935
Motor vehicle expenses	8,728
Other expenses	5,542
Total	19,205

114 No documents were produced to show the nature of the “other expenses”

claimed by the Trust. If the level of these expenses is used as the guide for Ronald’s future business related expenses, including the non-cash item of depreciation, I am satisfied that at least for the next few years Ronald’s income after business related expenses is likely to be significantly greater than Leanne’s income.

(c) whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years;

115 As earlier noted, Alexandra lives with Leanne and spends time with Ronald each

second weekend and during school periods. There is no dispute that Leanne will continue to have the main responsibility for Alexandra’s care, at least for the foreseeable future. Although Leanne does not suggest this responsibility is likely to impact on her ability to work, including full-time work, I accept if Leanne is successful in becoming a Police Officer she is likely to incur additional child care costs she would not be required to pay as a part-time sports instructor.

(d) commitments of each of the de facto partners that are necessary to enable the partner to support –

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(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

116 Neither party is responsible for supporting any person other than Alexandra.

117 Leanne sets out the commitments to support herself and Alexandra in her

Financial Statement. She has the benefit of being able to live in her de facto partner’s home. Leanne contributes to the expenses of that household and otherwise meets Alexandra’s and her own needs from her income.

118 Ronald lives by himself in the former home. From his income, he meets the

commitments set out in his Financial Statement which include mortgage payments,
outgoings on the property and his child support payment for Alexandra.

(f)

Subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:

(i)	any law of the Commonwealth, of a State or Territory or of another country; or
(ii)	any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid
to either party.

119 Ronald does not disclose being in receipt of any Government benefits. Leanne’s

Financial Statement sets out her entitlement to Government benefits. I am unable to determine the impact Leanne’s future employment will have on her ongoing eligibility for Government benefits. The value of Ronald’s superannuation at trial was $7,515 whilst Leanne has superannuation benefits valued at $10,042. The difference in the value of these benefits is relatively small. Although Ronald will be able to access his benefits many years earlier than Leanne because of his age, I do not intend to give this factor any significant weight.

(g) a standard of living that in all the circumstances is reasonable;

120 When the parties lived together, I am satisfied they enjoyed a reasonable

standard of living which included being able to go on a long holiday following the sale of Ronald’s business, buying a boat and good quality motor vehicles which they no longer have. They also shared in the benefit of the income Ronald earned from the business which was much higher than what he presently earns. There is no evidence to suggest that Ronald could earn in future years what he was earning before he sold his share in the business. Although Leanne asserts Ronald’s standard of living “did not change that much” following the separation, in my view, the standard of living of both parties is likely to have fallen since the separation. Notwithstanding this position, I am satisfied the parties are likely to have income and capital to enjoy a reasonable but modest standard of living in the future.

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(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(i) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(j) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

121 Leanne does not seek orders for de facto spousal support and these factors do not require additional consideration.

(k) the need to protect a party who wishes to continue that party's role as a parent;

122 Whilst Leanne will continue her role as principle caregiver for Alexandra, she does not suggest this will prevent her from pursing a career in the Police force.

(l) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;

123 Since about early 2008 Leanne has been living with her de facto partner, Edwina

who earns about $52,000 per annum as sports administrator. I accept that Edwina and Leanne keep their finances separate and Edwina meets the repayments and outgoings on her house. They share living costs. Although both Leanne and Edwina say their relationship was rocky for a number of years, neither suggested they were not committed to the other or had any plans to end their relationship. Leanne’s living arrangement enables her to live with Alexandra in rent free accommodation and to share some household expenses which are benefits Ronald does not have. I do not, however, view these benefits alone as putting Leanne in a significantly stronger position than Ronald.

(m) the terms of any order made or proposed to be made under s 205ZG in relation to the property of the parties;

124 I have earlier set out the assets and liabilities of the parties and my assessment of the parties’ contributions.

(n) any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship;

125 Ronald is assessed to pay $388 per month in child support for Alexandra. As

earlier noted, there is no evidence to suggest Ronald has failed to meet his assessed child support obligations in the past or could not be relied upon to pay child support for his future working life. That said, there is a prospect that Alexandra could remain

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dependant on Leanne for a period after Ronald finishes work which I have taken

into account.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

126 As mentioned, Ronald argues I should take into account his payments totalling $25,000 to Leanne’s mother. At paragraph 13 of his affidavit filed 8 September 2008 Ronald says about these payments: “I also lent her mother $25,000 over the time we were together and I have not been paid back”. Leanne disputes the funds were lent to her mother. The parties do agree the funds were paid to assist Leanne’s mother who was being treated for cancer and needed financial help at the time. When cross- examined, Ronald conceded he did not expect Leanne’s mother to pay back the funds nor has he made any claim for the money other than when he happened to meet up with Leanne’s mother at a supermarket a few months before the trial and allegedly asked for the funds. Ronald did not include the $25,000 sum as an asset in his financial statement.

127 Whilst there may be circumstances where the justice of the case calls for the

payment of funds to family members to be added back or taken into account in the division of assets, I am not satisfied this is such a case. Both parties agreed to help Leanne’s mother in the circumstances described. Ronald does not suggest he was misled or tricked by Leanne into making the payments. Indeed on Ronald’s evidence, he made a family loan which he expected to be repaid but has taken no steps in some five years to seek the return of the funds. I do not intend to take the payments to Leanne’s mother into account as a factor favouring Ronald in the property division.

128 Ronald submits the Court should also take into account that the home is also

Alexandra’s home and offers her stability and security when she stays with him. It is an unfortunate consequence when relationships break down that families are often dislocated and children have to adjust to living in a new environment. Nonetheless, Ronald will have the opportunity to raise any funds that may be payable to Leanne to avoid having to sell the house. If he is unable to do so, the property will have to be sold to pay Leanne her entitlement.

129 There is no other fact or circumstance which the justice of the case requires to be taken into account which has not already been considered.

(p) the terms of any financial agreement or former financial agreement that is binding on the parties.

130 Not applicable.

Conclusion – Section 205(3) factors

131 Following my assessment of the parties’ contribution based entitlements, Ronald

is entitled to 67% of the assets which in money terms is $142,163 plus superannuation of $7,515. Leanne is entitled to 33% of the assets which in money terms is $70,020 plus superannuation of $10,042. The disparity in money terms is therefore $72,143 in

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favour of Ronald out of a total net asset pool of $212,183, not including the parties’
superannuation interests.

132 In my opinion, the factors of most significance in this case are:

• the age of the parties;

• Leanne having the capacity to work for many years after Ronald is likely to have retired;

• Ronald’s greater income;

• Ronald’s greater property interests; and

• Leanne’s greater responsibility for the future support and maintenance of Alexandra who is aged 10 years.

133 After balancing the relevant factors, in my view, an adjustment is called for in Leanne’s favour of 7% in addition to her contribution based entitlements.

Just and equitable

134 The effect of my decision on the parties’ contributions and the s 205ZD(3)

factors is that Leanne is entitled to 40% of the asset pool or $84,873 whilst Ronald is entitled to 60% or $127,310. The difference in money terms is $42,437 favouring Ronald.

135 Ronald seeks to retain the house and Leanne does not oppose this provided she

is paid out her entitlement. To do so Ronald will need to borrow the required cash adjustment payable to Leanne in addition to refinancing the mortgage debt of $221,000. This is not an insignificant amount for someone of Ronald’s age but ultimately it is a decision for him. If Ronald cannot borrow the required funds, the property will need to be sold and the proceeds divided between the parties to give effect to their entitlements.

136 Provided Ronald can raise the necessary funds to retain the property, the parties’ entitlements will comprise the following:

Assets	Ronald	Leanne
The home property	$410,000

Leanne’s contents	$ 3,000
Ronald’s contents	3.000
Ronald’s Mitsubishi	10,000
Ronald’s legal fees	9,642

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Amount payable to Leanne 84,332

Total assets	432,642	87,332
Liabilities
Mortgage debt on the home property (to be assumed by Ronald)	221,000
Leanne’s GE loan	2,459

Amount payable by Ronald 84,332

Total liabilities	305,332	2,459
Net assets	127,310	84,873
Superannuation	7,515	10,042

137 The orders I propose to make will have no effect on the earning capacity of

either party.

138 From her entitlement, Leanne will be liable for her bank loan for legal fees, her

outstanding legal fees, her GE loan and car loan. Apart from the amount payable to Leanne and the mortgage debt, Ronald will have his credit card debts, overdraft and GST liability to pay.

139 I am satisfied the orders I propose making are just and equitable in the

circumstances.

140 Subject to hearing from counsel, I propose making the following orders:

1.	Within 42 days of the date of these orders, Leanne M (“Leanne”) do transfer to Ronald M (“Ronald”) all her right, title and interest in the property at the address in the suburb in the State of Western Australia being the whole of the land comprised in Certificate of Title Volume 1111 Folio 111 (the property).
2.	Contemporaneously with the transfer of the property, Ronald do:

(a)	discharge the registered mortgage to Adelaide Bank Limited; and
(b)	pay Leanne M the sum of $84,332.

3. In the event Ronald fails to comply with the preceding order (notwithstanding Leanne being ready and able to comply with order 1 hereof), the parties do forthwith place the property on the market for sale and disperse the proceeds as follows:

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(a)	in payment of the costs of sale including settlement fees;
(b)	in payment of the amount required to fully discharge the mortgage which encumbers the property;
(c)	in payment to Ronald of such lump sum as shall give him 60% of the value of the property (not including superannuation) as determined by the pool of assets set out in these Reasons for Decision, less the value of the assets to be retained by him pursuant to these orders;
(d)	in payment to Leanne of the remaining 40% of the sale proceeds.

4. Ronald do pay and indemnify Leanne against any arrears outstanding in respect of the property mortgage and against any outstanding rates and taxes relating to the said property.

5. Any interest Leanne have in the following do vest in Ronald:

(a)	the furniture and contents in Ronald’s possession;
(b)	the proceeds received from the sale of the boat and Landcruiser motor vehicle received by Ronald;
(c)	the Mitsubishi motor vehicle in Ronald’s possession;
(d)	Ronald’s interest in TCIPL;
(e)	the assets of the RM Family Trust;
(f)	any monies standing to the credit of Ronald in any bank or other financial institution; and
(g)	any superannuation entitlements held by Ronald.

6. Any interest Ronald may have in the following do vest in Leanne:

(a)	the furniture and contents in Leanne’s possession;
(b)	the Ford motor vehicle in Leanne’s possession;
(c)	any monies standing to the credit of Leanne in any bank or other financial institution; and

(d) any superannuation entitlements currently held by Leanne. Ronald indemnify Leanne and keep her indemnified against all claims in relation to Ronald’s Commonwealth Bank overdraft account and National Australia Bank bankcard liabilities.

7.

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8. Leanne indemnify Ronald and keep him indemnified in relation to her GE card.

9. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these orders:

(a)	each party be entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this date;
(b)	all insurance policies become the sole property of the beneficiary named in that policy;
(c)	each party be solely liable and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders, unless otherwise specified; and
(d)	each party forego any claim they may have to any superannuation benefits belonging to or earned by the other.

10. The parties do all such acts and things and sign all such documents as may be necessary to give effect to these orders.

11. The parties have liberty to apply with respect to the sale of the Edgewater property.

12. The applications of the parties otherwise be dismissed.

I certify that the preceding [140] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate