Merritt & Merritt - [2008] FMCAfam 459

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MERRITT & MERRITT

[2008] FMCAfam 459

FAMILY LAW – Property orders – assessment of contributions.

FAMILY LAW – Costs.

Family Law Act1975 ss.79(4), 75(2), 117

Browne v Green (2002) 29 Fam LR 428

Applicant:

MR MERRITT

Respondent:

MS MERRITT

File Number:

BRC 7883 of 2007

Judgment of:

Jarrett FM

Hearing date:

17 March 2008

Date of Last Submission:

17 March 2008

Delivered at:

Brisbane

Delivered on:

20 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr Clutterbuck

Solicitors for the Applicant:

Milburn Guttridge Lawyers

Counsel for the Respondent:

Mr Jordan

Solicitors for the Respondent:

Jones Leach Hawley

ORDERS

That as and by way of Orders for division of the property between the parties:-

1.1.That within forty-five (45) days, the Husband transfer to the Wife all of his right, title and interest in and to that property situated at Property J, [J] in the State of Queensland more particularly described as Lot 16 on Registered Plan 8xxx County of Ward Parish of [J] contained in Title Reference 1xxx (“the [J] property”), which property shall thereafter be the sole and absolute property of the Wife;
1.2.That the Husband pay to the Wife the sum of $41,793.00 within forty-five (45) days.
1.3.That in consideration of the payment of the Husband to the Wife of the said sum of $41,793.00 the Wife shall refinance within forty-five (45) days the existing joint housing loan debt of the parties to Suncorp-Metway Limited thereby releasing the Husband from all or any liability to that Mortgagee in relation to the loan secured by that mortgage.
1.4.That in the event that the Husband complies with Orders 1.1 and 1.2 hereof, the Wife shall relinquish in favour of the Husband her right, title and interest in and to those properties situated at Property S, [U], Queensland (described as Lot 3xxx on RP 3xxx) and at Property R, [U], Queensland (described as Lot 3xxx on RP 1xxx) and to Property MProperty M, Queensland (described as Lot 3xxx on RP 1xxx).
1.5.That in default of the Husband paying to the Wife the sum of $41,793.00 within forty-five (45) days, Orders 1.6 to 1.10 shall apply.
1.6.The Husband shall sell within one hundred and fifty (150) days of these Orders such of the real properties owned by him at Property S, [U], Queensland (described as Lot 3xxx on RP 3xxx) and/or Property R, [U], Queensland (described as Lot 3xxx on RP 1xxx) (collectively hereinafter called “the [U] properties”) as is necessary to pay the Wife the sum of $41,793.00.
1.7.In the event that the Wife has not been paid the sum of $41,793.00 by the Husband within one hundred and fifty (150) days of the date of these orders by way of completion of sale of the [U] properties or either of them within that period, both of the [U] properties shall proceed to auction to be held within one hundred and eighty (180) days of the date of these Orders at which auction the reserve price placed upon the properties shall be recommended by the auctioneer, which auctioneer shall be agreed by the parties or failing agreement, shall be appointed by the Chief Executive Officer of the Real Estate Institute of Queensland.
1.8.Pending sale of the said [U] properties, the Husband shall maintain the residences, lawns and gardens in a clean and tidy condition and in a state suitable to the marketing of the properties for sale, and he shall pay when due all mortgage instalments on mortgages secured against title to those properties, local authority rates and the premiums to the insurer of the properties.
1.9.The Husband shall sign all necessary documents and do all necessary acts and things so as to complete the sale of the [U] properties.
1.10.On completion of sale of the [U] properties, the proceeds of sale shall be applied in the following manner:
(a)In satisfaction of Agent’s commission, advertising expenses, auction fees (if applicable) and legal conveyancing fees;
(b)In satisfaction of the mortgages secured against the title to those properties;
(c)In payment of the sum of $41,793.00 to the Wife;
(d)In payment of the balance proceeds of sale to the husband.

1.11.That the Husband transfer to the Wife all of his interest in and to the Wife's Holden motor vehicle.
1.12.That the Husband transfers to the Wife all of his right, title and interest in and to the savings, investments, furniture, household effects, superannuation and all or any other property of any nature or kind in the possession of the Wife or to which she is beneficially entitled.
1.13.That the Wife transfers to the Husband all of her right, title and interest in and to the Husband’s motor vehicles, plant and equipment, the business known as [X] Earthmoving, savings, investments, furniture, household effects, superannuation and all or any other property of any nature or kind in the possession of the Wife or to which she is beneficially entitled.
1.14.That the Wife indemnify the Husband and keep him indemnified in relation to all personal liabilities owed solely by her
1.15.That the Husband indemnify the Wife and keep him indemnified in relation to all personal liabilities owed solely by him.
1.16.That the Husband and the Wife do sign all necessary documents and do all necessary acts and things so as to give effect to these Orders, and that in the event that the Husband and the Wife refuse to sign any document or do any act or thing necessary to give effect to these Orders, pursuant to s.106A of the Family Law Act1975, the other party may apply to the Registrar of this Honourable Court or his Deputy or any other officer of the Court to sign any necessary documents or to do any necessary act or thing on behalf of the party in default.

That the Husband indemnify the Wife in respect to any liability of the Husband and Wife to G.
That the Husband pay the Wife’s costs of and incidental to the application fixed in the sum of $7,364.50, such costs to be payable within forty-five (45) days, namely by 5 May 2008.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 7883 of 2007

MR MERRITT

Applicant

And

MS MERRITT

Respondent

REASONS FOR JUDGMENT

This is an application for property adjustment orders between Mr Merritt and Ms Merritt. The material reveals that the parties commenced living together in about December, 1987 and married in December, 1990.
The date of separation is the subject of some dispute between the parties. The husband contends it is June, 2002. The wife contends it is January, 2004. I do not think it is necessary to determine that dispute but if it was, I determine that the date of separation was January, 2004 mainly because I found the wife a more impressive witness than the husband on this point. But in my view nothing turns on that issue in any event.
The parties were divorced on 1 November, 2006 but for the sake of convenience I will refer to them in these reasons as husband and wife.
The law to be applied in respect of property applications under s.79 of the Act is relatively straightforward. The first task of the Court is to ascertain and value the asset pool. The second step is to consider the matters raised for the Court's consideration by s.79(4) of the Act and come to a conclusion about each party's contribution-based entitlement. The third is to consider the matters set out in s.79(4)(d), (e), (f) and (g) of the Act and that, in large measure, calls up a consideration of the factors set out in s.75(2) of the Act – the maintenance factors. The Court should decide what adjustment, if any, is necessary under section 75(2) or 79(4)(d), (e),(f) and (g) and fix on some orders to be made. The fourth step is to consider whether the orders that the Court intends to make are in all of the circumstances just and equitable.
In this case the assets comprise the following items:
1)real property at Property J, [J] with a value of $550,000 and a mortgage over it of $143,400;
2)real property at Property S, [U] with a gross value of $315,000 and a mortgage over it of $176,470;
3)property at Property R, [U] with a value of $272,500 and a mortgage over it of $145,733;
4)there is land at a place called Property M in respect of which the husband has a half share and the parties agree that share is worth $50,000;
5)the husband has plant and machinery which I am satisfied should be valued for the purposes of these proceedings at $288,500. I prefer the husband's calculations as to the value of that plant and machinery over those proffered by the wife. The husband’s day to day experience with the plant and equipment and his involvement in the earthmoving industry lends authority to his calculations;
6)the wife has an Holden motor vehicle valued at $5,500, superannuation of $21,824; and
7)the husband has superannuation of $4,200. He also has the proceeds of a bobcat or a skid steel loader of $9,189.
In addition to the liabilities to which I have already referred the husband contends that some other liabilities ought to be taken into account. Clearly there should be allowance for the plant and machinery liability of $233,246.81. The husband claims that a liability referred to in his financial statement and in the asset schedule handed up to me as the "Property R Renovations" being a liability of $45,382 ought to be taken into account. I do not propose to bring that liability to account. There is no evidence about it other than that appearing in the form 13 financial statement filed by the husband by leave before me. It does not appear in his form 13 filed on 27 June, 2007 and it is not the subject of any evidence by him in his affidavit.
He contends that I ought to take into account a liability described as "ANZ supplementary business loan" in the sum of $24,890.93. Again, that amount appears in his most recently filed form 13 financial statement but there is no evidence in his affidavit about that liability. In cross-examination he touched on the existence of that loan and in some answers to questions asked by me it seemed that that amount or part of that amount was expended on repairs to some of his machinery but there are no particulars and it is something that one might have expected some more cogent evidence about in his affidavit material. I am not satisfied that he has discharged the onus on him to prove on the balance of probabilities that the liability exists or the nature of it. I do not take it into account.
The husband asked me to take into account a liability to G of $25,000. I take that liability into account. Although his affidavit material is silent on it, the liability appears in both form 13 financial statements that he has filed. Perhaps more importantly, the wife accepted that the money was advanced by G to the parties. She did not know whether it had been repaid or not. The husband, at least by inference because he has included it in his form 13’s, suggests that it has not been repaid and I am prepared to accept that.
The next liability the husband wishes taken into account is a loan from a Mr D. I do not take that liability into account for these reasons: first of all the loan is not explained in the husband's affidavit material. There is an affidavit from Mr D that supports the liability, both the existence of a liability and the amount. He also deposes to the circumstances in respect of which the loan might have been made and inasmuch as Mr D gave evidence and was cross-examined before me, I saw no particular reason not to accept what he said as a result of his demeanour or any of the answers he gave in cross-examination.
But he is a friend of some standing of the husband's and when one couples that with what the husband swears in para.38(d) of his affidavit filed on 27 June 2007, there is a real reason, it seems to me, to be sceptical about the existence of the loan. In para.38(d) of his affidavit the husband swears:
I went into partnership with a friend, Mr S, and we purchased Property M in 2005 for $80,000. My share of $40,000 I paid cash. This was acquired from the sale of the industrial block of land at Property D. Now produced and shown to be marked "GMC6" is a copy of the title search in respect of this property.
Clearly enough the husband is asserting that he paid $40,000 for his interest in the land. He paid that in cash and the cash came from the sale of the industrial block of land at Property D. It is not suggested in that part of his affidavit that any part of the $40,000 used by him came from Mr D. In those circumstances the husband, in my view, fails to discharge the onus of proof on him.
The next liability referred to by the husband is an income tax liability of $23,279.62. I am not prepared to take that into account in these proceedings. It is not the subject of any evidence in his affidavit about how and in what circumstances that debt arose. There is no notice of assessment, for example, in evidence. I remain entirely unsatisfied (a) that the debt exists, (b) about the value of the debt, and (c) about the circumstances in which, if it exists, it has accrued.

Finally the husband seeks for inclusion in the liabilities to be taken into account in these proceedings a visa card liability that suffers the same fate as the tax debt. There is no evidence to support it at all in my view.
Accordingly, the net asset pool, in my view, totals $792,863.19.
I turn to the question of contributions. At the commencement of the relationship – and I should say before I commence this discussion that it is difficult to ascertain from the husband's material exactly what his case is in respect of initial contributions and many of the other matters upon which I need to make findings in this matter. But having regard to his affidavit material and the many concessions made by the wife in her material, it seems that at the time the parties commenced their relationship the husband had an interest in a dwelling house at Property E. The husband was at the time working as a [Public Service] officer and I think it can fairly be said had accumulated some superannuation entitlements at that time, although I cannot say how much.
The wife owned furniture and a motor vehicle. She was a fulltime carer for her son C who was born in 1984. The husband also had two children from an earlier relationship, B and G. B was born in April, 1978 and G was born in December, 1979.
About two years after the parties commenced their relationship the husband left the [Public Service] and at the time he received $125,000 by way of a superannuation payout; $98,000 of that was put into the National Mutual rollover fund and the balance was used to meet part of the purchase costs of a property at Property F near Ingham in north Queensland.
The parties' family unit at that time, as best as I can tell, comprised the husband and the wife and C but from time to time B and G spent periods of time with the family. I will pause to note that subsequently in 1993 both B and G came to live with the husband and wife in these proceedings on a fulltime basis.
Soon after the husband left the [Public Service] he commenced operating a business. The wife assisted him in working in that business. The business did not last very long however and according to both the husband's evidence and the wife's evidence, it did not make much by way of an income. The business was sold after about six months and the parties moved to Property F.
In Property F the husband worked two days a week as a casual for [X]. The wife worked fulltime according to the husband's evidence, also in [X].
In para.8 of his affidavit filed on 27 June, 2007 the husband swears:
After a short period working in the butcher's shop business both Ms Merritt and I relocated to North Queensland where we took up residence in our first dwelling Property F. Not long after our arrival I sold the business. Upon arrival in Ingham I commenced casual employment at [X]. I was working approximately two days per week for a period of around one year in that capacity. During this time Ms Merritt was also employed at [X]. She worked on a fulltime basis for the year I worked as a casual. I was able to afford to live on two days' work per week due to my receipt of superannuation from [Public Service] and I injected this into the relationship as both Ms Merritt and I used that money supplemented by her income over the period of time. As stated previously I invested approximately $98,000 of my superannuation with the National Mutual rollover fund.
Not a lot is clear about what the husband did with his superannuation money when he received it, apart from putting $98,000 into a National Mutual rollover fund. The balance between what he received and what he put into the rollover fund, $27,000, might have gone to defray some of the purchase costs of Property F or it might be the money the husband speaks of in para.8 of his affidavit as facilitating him being able to "afford to live on two days' work per week"; or it might be that the amount that permitted him to live on two days' work per week was in fact the $98,000 from the National Mutual rollover fund. None of that is clear.
The wife's evidence provides perhaps something of an answer because she swears in para.18 of her affidavit that the husband withdrew money from the National Mutual rollover fund totalling nearly $88,000 over the period between 16 July, 1990 and 26 October, 1990. She subsequently swears that most of that money was used by the parties to fund a $60,000 capital injection into a partnership business between the husband and one of his brothers.
In any event the position is not entirely clear but what is clear is that the wife worked fulltime and earned an income; the husband worked casually two days per week and earned an income and lived off some of his capital.
The husband also did some work on the former matrimonial home at Property F at the time: the wife concedes as much. The nature and extent of the work is not clear from the material. On the husband’s case it was substantial work. I am prepared to accept that evidence. The husband asserts that it increased the value of the property but there is no evidence that supports his assertion.
I should also say that at the time that the parties’ commenced cohabitation the husband also had some plant and equipment. It is not clear from the husband’s material, but it seems, and I am prepared to find that he had a truck and a bobcat that he had deployed in an earthmoving business that was conducted in partnership between two of his brothers and himself. He describes himself as a "silent partner" - perhaps that means that he intended to contribute the plant and equipment and receive in return some money either by way of hire or distribution of profits. None of that occurred, it seems. There is no evidence that he received anything other than the return of the truck and the bobcat.
In any event whatever happened to that partnership, after a couple of years in Property F the husband decided to join a partnership with his brother B in an earthmoving business that was conducted in [J]. That happened in about 1990 and the husband paid $60,000 towards acquiring an interest in that business. He swears that most of that money went to defraying debt accumulated in that business and about $15,000 was subsequently used, again to defray debt.
After a little while, again, it is not entirely clear how long, the partnership conducted between the husband and B was converted to a company, [C] Earthmovers Pty Ltd. B and the husband became directors and shareholders of that company. But B and his wife, and the husband and the wife in these proceedings all worked in the business and drew a wage. The wife worked in the business as a book-keeper of sorts and the husband, it seems, operated some machinery.

In 1996 that earthmoving business was terminated and according to the husband's evidence the assets were distributed equally between the parties. The husband took out of that dissolution two bobcats and two trucks. The values of the items at the time are not in evidence. The earnings of either of the parties from [C] Earthmovers Pty Ltd or from its predecessor partnership are not in evidence.
By the time the business was terminated and the company wound up E had been born. Following E’s birth the parties agree that the wife became the primary carer for E. In 1993, as I have earlier remarked, G and B moved to live with the parties on a full time basis and the wife, I am satisfied, took on the lion's share of the care for B, G, E and C. C ceased living with the parties in 1997 when he started to live with his father. B left the direct care of this family in 1997 and G left in 2002.
At about the same time that the earthmoving company was wound up the husband commenced working in an earthmoving business on his own account using the machinery he took from the company. The wife commenced a business in partnership with a person called Ms S.
The husband was supportive of that arrangement. He swears in his affidavit that he saw considerable potential for that business. That business, however, seems not to have realised whatever potential the husband saw for it because the partnership between the wife and Ms S ended after not too long. The business was then conducted by a partnership between the wife and one Ms B. The relationship with

Ms B soured and ended in litigation. The litigation was continuing when the husband said the relationship ended in 2002.
There is no evidence before me about the earnings from the wife’s business. There are some assertions by the each party about profit margins and the turnover of the business but beyond that there is no precise evidence about what was earned or what was drawn from this business by the parties.
The husband asserts that the business did not work out because the wife was misappropriating funds from the business and that was part of the reason for the souring of the relationship with Ms B, but there is no evidence to support that. He also asserts and perhaps implies, as a reason for a failure with the business, that the wife had a gambling habit which saw her spend significant periods of time playing poker machines. He asserts that she regularly played poker machines in the [J] Tavern and although she would tell him that she had won substantial amounts of cash, he was never able to share in the proceeds.
I reject the assertions about these matters. There is no evidence to support them. Significantly, in cross-examination it was suggested to the wife that she gambled by taking stacks of scratch‑it tickets home from the newsagency, something that does not appear in the husband's affidavit material. Presumably the questions were asked upon instructions, but the husband did not swear to having observed any such behaviour by the wife. In the circumstances, I am not satisfied as the husband asserts in para.37 of his affidavit that "his hard work was being wasted by Ms Merritt's poor business management, misappropriation and gambling losses".
The newsagency business was a joint enterprise by these parties and ought to be seen as such. The parties were able to inject capital into the business from the husband’s earthmoving business (see exhibit 2), but the business venture did not go to plan.
The parties were fortunate to be able to acquire a parcel of five acres in [J] from the husband's brother in about 1990. The purchase price of the land was modest. The husband says it was the cost of subdivisional approval amounting to about $12,000. The wife says it was that plus about $32,000. In any event, they jointly borrowed $125,000 in 1991 and built the house which became their home and which is now the [J] property earlier described in these reasons.
I find that in about March, 2002 the husband went to Hervey Bay for work purposes. He returned to Brisbane soon after and I am satisfied that in June of that year he returned to Hervey Bay for work purposes. He has remained there ever since. The wife and E have remained in Brisbane. She has changed residences a couple of times. She has had to accommodate herself in rental accommodation for the reasons that she sets out in her affidavit and which do not significantly differ from the reasons set out in the husband's affidavit material. I accept her evidence about those matters. The husband has assisted her with some of the costs of that alternate accommodation.
I am satisfied that since separation in January, 2004 the wife has had almost sole care of E, apart from some moments from time to time when she might have visited the husband in Hervey Bay.
As to what occurred between 2002 and 2004 the evidence is a little unclear. The husband denies but the wife asserts that she would go to Hervey Bay every second weekend. I am not sure that I can make that finding. I found the wife's evidence ultimately a little equivocal on that point, but it does not much matter; the parties agree that she had the primary responsibility for E.
I am not satisfied that she has been left without proper financial support from time to time for herself or E by the husband. There is evidence in his affidavit filed on 5 March this year that suggests that he has made a number of payments since 2002 totalling almost $100,000 towards either E or the wife.
Some of those payments do not bear close scrutiny and one needs to be careful not to double dip as such because one of the assets in these proceedings is also taken up in that list of payments; I speak of course of the car. There are other payments said to be made by the husband to the wife for E which really could probably be seen as personal gifts by the husband to E: birthday presents and Christmas presents and the like, not really forms of child support that one would expect to see or give credit to; but I record that the husband has made those payments.
There are also some payments made and described as “Back Taxes” totalling $34,902.05. The nature of that liability, or how it arose, is not explained in the evidence. I am not satisfied that those amounts might properly be said to be contributions by the husband to the property of the parties or the welfare of the family in the absence of such evidence.
After the date that the husband contends was the date of separation, the husband acquired real property, the details of which are set out in para.38 of his affidavit filed on 27 June, 2007. The property purchase in 2003 at Property S, [U] was initially purchased by both parties. I accept the wife’s evidence in her affidavit filed on 10 September, 2007 at para.45 on this point.
Having regard to those findings about contributions and that view of the evidence I am satisfied that this is a case where I ought to see contribution-based entitlement as equal between the parties. I specifically reject the notion that the husband ought be seen as having contributed more by reason of the $125,000 superannuation received by him in about 1989 for these reasons: first, the whereabouts of the balance of $27,000 between the National Mutual investment account and the amount received by him in superannuation is not really explained in the material. It may have found its way into Property F, it might not have; it might have been used by him for the purposes of funding his two days of casual work per week whilst the parties lived in Property F, it may not have. It is unclear from the evidence if the parties had any equity in Property F when it was sold.
Secondly, the balance of $98,000 in the National Mutual investment account seems to have found its way into the earthmoving partnership with B and to the extent that one is able to trace that money through the assets, it might be that that amount is still represented by plant and equipment that is in the husband's hands. But having regard to the asset valuations in this case about which the parties agree or as the case might be, I have found, there is little by way of equity in the plant and equipment that the husband presently has. There is in round terms, about $50,000 equity in the plant and equipment. Plant and equipment of course is a depreciating asset and it is likely, it seems to me, that any plant and equipment that the husband might have obtained indirectly via his interest in the business in 1990 when he injected $60,000 into the partnership, is likely to have depreciated over the nearly 18 years since then.
In terms then of the current assets it is difficult to see that the husband’s superannuation contribution is reflected in any of them, save as I have set out above. Both parties have worked during the relationship in their different ways, sometime contributing in a financial way and sometimes in a non-financial way. In my view, neither party has made a contribution that is in any way more significant than the other.
In terms of matters arising under s.79(4)(d), (e),(f) and (g), in my view child support is not likely to be a significant issue in the future. E is 16 and the father's liability for child support will end soon. The wife has, of course, the care and control of E and even though the husband might make payments by way of child support either formally through the assessment process or informally through other payments, they will not of course, come close to meeting the actual costs associated with caring for E.
The husband on his own material swears that he earns about $60,000 per annum. He deposes, and there is some medical evidence to support the assertion that he is showing signs of wear and tear, especially in his back, but there is no clear evidence to indicate that his working life is of any particular or finite duration. Indeed the medical evidence does not bear on the issue that if he is forced into a position where he can no longer operate as an earthmover he cannot go back and exercise his skills [that were utilised for his former business].There is no evidence about what he might earn in this capacity.
The evidence does reveal that he claims he has outgoings at the moment of some $2797.14 per week, nearly $1,800 more than his income per week. When one carefully considers his expenses it is not difficult to conclude that at least some of them bear closer scrutiny and one must approach his claims about his level of expenses with a fair degree of circumspection.

It was demonstrated adequately in cross‑examination, I thought, that if his expenses truly were as he set out in his form 13, either that filed by leave at the trial or on 27 June, 2007 there would have been a significant increase in his liabilities over time and although as between the two financial statements there was a significant increase in his liabilities, the husband's explanations for those increases did not provide any explanation as to how he might have funded his shortfall in expenses over income for that period.
The wife's evidence is that she has recently lost her employment with the [W] Tavern. She was employed there in a managerial role but very recently, before the trial, was relieved of that position. Her evidence however was that notwithstanding that, she was able to secure casual employment at the same establishment which would return her an income stream of roughly equivalent to what she was earning in her previous role, the difference being that she would no longer have the security of paid recreation or sick leave.
It seems therefore that she presently earns and will continue to earn about $800 per week and have expenditure of a little over $1,000 per week. That expenditure, of course, includes the expenses that she will have for E.
In the circumstances of this case, in my view, an adjustment under s.75(2) is called for in favour of the wife to take into account the matters to which I have just referred. The adjustment ought to be

10 per cent or about $79,000. That is a little more than one year's gross earnings for the husband and in my view represents an appropriate adjustment given E's age and the earning capacities of both of these parties.
Accordingly, the parties' property ought to be divided between them $475,717 to the wife and $317,145 to the husband. The wife has and seeks to remain in possession of the Property J, [J] property which is subject to a mortgage, her motor vehicle and the wife's superannuation. Those assets total $433,924 and to receive her entitlement she should receive a further cash payment from the husband for $41,793.
The husband will have the [U] property, the R property, the M property, his superannuation, the net proceeds of the skid steel loader, his plant and equipment and the liability thereon, and the husband should also retain the liability to G. The husband should indemnify the wife in respect of that liability to G.
Those orders will not affect the husband's capacity to earn income because it will leave him in possession of the plant and equipment that he utilised to produce his income and the wife will be in possession of the [J] property, the property where she and E have from time to time and most recently lived. There is nothing to suggest that the husband would not be able to fund the cash payment by him to the wife and in any event he has assets from which that cash payment might be made.
Accordingly I will make orders in terms of the wife's outline of case document, paras.1, including all sub-parts thereof but substituting the figure $41,793 for the figure $75,000 where it appears in 1.2, 1.3, 1.5, 1.6, 1.7 and 1.10(c) thereof.
Costs are dealt with under s.117 of the Family Law Act1975. The general rule is set out in s.117(1), that is that each party in the proceedings under the Act ought bear their own costs. Section 117(2) gives the Court a discretion to make another order as to costs if it thinks in the circumstances it is appropriate to do so.
The factors to be taken into account are set out in s.117(2)A. The wife relies on three of those factors in particular. The first is the financial circumstances of the parties. Having regard to the orders that I have just pronounced the wife will have nearly $500,000 in assets and the husband will have $317,000 also in nett assets. Those assets largely comprise real property. The wife has a little over $20,000 in superannuation.
The second factor relied upon by the wife is the measure of success enjoyed by her in these proceedings. It is right to say, I think, that the husband's application of a division of 80 per cent in his favour was always outside of the range of an appropriate exercise of discretion in this case.
The submissions put at the conclusion of the trial, without doubt reflecting the husband's instructions in the matter, were that he had made the far greater financial contribution in this case and that might well be so but financial contributions are not the be all and end all and s.79(4) sets out that the Court also needs to take into account non-financial contributions. It was really not in dispute between the parties that in terms of the role of looking after the children, and in particular E, those duties fell to the wife and she at the same time worked and earned an income of sorts at varying rates from time to time. The view I took was that overall the contributions, both financial and non-financial were equal.
The husband did not seem to want to acknowledge that. There is not one positive thing in his material, it seems, about the contributions made by the wife. Indeed, his material does not even avert to the fact that B and G came to live with the family and were cared for by the wife but it certainly makes reference to the fact that C was part of the family from the time the parties commenced their relationship. In that sense it seems to me that the husband's position has always been unreasonable.
The wife also points to an offer that she made very recently to settle these proceedings which would have meant she would receive about $400,000 out of the total pool of $792,000. It is on any view of it, an offer that was worthy of consideration. There is nothing to suggest that the husband gave it any consideration at all for a moment's reflection might have indicated that what the wife was offering was indeed, insofar as the husband was concerned, at the lower end of the range of the result that might be expected.
Browne v Green (2002) 29 Fam LR 428 makes it plain that proper weight ought to be given to offers to settle made in accordance with the rules and the Act and lip service only is not to be paid to offers. Provided the offer is certain, capable of proper consideration and the party receiving the offer is in a position to give it proper consideration having regard to the state of disclosure between the parties, then it can often be said that that factor is of very significant weight in cost considerations.
There is nothing to suggest that there was anything in this case in terms of inadequate disclosure or the like that suggested that the husband could not properly consider the offer. Indeed, the evidence relied upon by him at trial insofar as his evidence was concerned, consisted of an affidavit filed by him on 27 June 2007 and a subsequent much shorter affidavit dealing with a discrete issue filed in March of 2008.
In those circumstances I am satisfied that there ought to be an order for costs. I am satisfied that the husband ought to pay the wife's costs from the date of expiry of the offer to settle. I accept the submission that that should include an amount for preparation and the trial.
The rules of this Court and in particular rules to be found in Part 21 and the sub-rules thereof, provide that the schedule set out to the rules should apply unless the Court otherwise orders. The wife says that I should order that the costs should be agreed between the parties or if not agreed assessed. The effect of making an order for the costs to be assessed will be to by default, have the costs assessed according to the Family Law scales set out in the Family Law Rules.
I am not prepared to make that order. The proceedings were conducted in this Court in very short compass in a manner in which they were expected to be conducted. The schedule makes an allowance for preparation for hearing for a one-day matter and appropriate allowances for hearing fees and disbursements.
I propose to make an order that fixes the costs according to schedule 1 of the scale. I have not heard counsel on disbursements and the like so I propose to stand the matter down so the parties can agree on those matters and if not I will fix them if you cannot agree, but it seems to me to be stage 5. I would be prepared to allow counsel's fees as a disbursement and any other necessary disbursements for the purposes or that have been incurred since the offer to settle expired.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S. Haysom

Date: 13 May 2008