METZER & METZER

This case concerned property settlement proceedings between a husband and wife following a 15-year marriage, during which they had one child. The wife contended she made 95% of the initial contributions to the marriage, with other contributions being relatively equal. The wife also had almost full-time care of the parties' 16-year-old child. The wife sought a *Kennon* adjustment, alleging family violence, and also sought an adjustment based on her earning capacity due to medical expert evidence. The matter was heard by Judge B Smith.

The court was required to determine several legal issues. Firstly, it needed to assess the property interests of the parties, considering their respective contributions and the impact of the wife's ongoing care of the child. Secondly, the court had to consider the wife's claim for a *Kennon* adjustment, which required her to discharge the onus of proving family violence. Thirdly, the court was tasked with evaluating the wife's claim for an adjustment based on her diminished earning capacity, considering medical evidence regarding likely future physical restrictions and their probable impact on her earnings from age 60.

In relation to the property division, the court found that the wife had not proven family violence, and therefore no *Kennon* adjustment was made. Regarding the wife's earning capacity, the court accepted the medical expert evidence that she would likely experience a diminution of her physical capacity from age 60, necessitating moderate restrictions that would affect specific tasks of her current job and occupation. However, the court found that the wife bore the legal and evidentiary onus to establish that this would probably lead to reduced earnings from age 60. As there was no submission that she would be unable to work or had no residual earning capacity, and given her skills to perform suitable duties involving no physical work with her current employer, the court found insufficient evidence of likely future earning capacity and earnings post-age 60 in other occupations. Consequently, only a small adjustment was made in this regard.

The court ordered that within 42 days, the Respondent Wife was to pay the Applicant Husband the sum of $414,029. Upon payment of this sum, the Applicant Husband was to transfer his interest in the property at Street A, Suburb B, New South Wales, to the Respondent Wife. In the event of non-compliance with this order, specific provisions for the sale of the property by public auction would take effect. The orders also detailed a superannuation split, allocating $50,000 of the Respondent Wife's superannuation interest to the Applicant Husband. Further orders addressed the parties' respective ownership of other assets and liabilities, including a property in Queensland held in the wife's name, and provided for mutual indemnities regarding liabilities. The proceeds of sale of the primary property were to be distributed according to a specified formula, with the wife bearing the costs associated with discharging any mortgage over the Queensland property that was also secured over the primary property.