Millard and Millard - [2008] FMCAfam 926

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILLARD & MILLARD

[2008] FMCAfam 926

FAMILY LAW – Property distribution – short marriage – significant initial contribution by one party – financial contributions during relationship – consideration of conflicting evidence as to date of commencement of relationship – consideration of family debt structure and internal loans amongst family members – future capacity for work and disparity in future income-earning capacity – just and equitable distribution of property.

Family Law Act 1975 (Cth), ss.75(2), 79(1),(2), (4),(5)

Applicant:

MS MILLARD

Respondent:

MR MILLARD

File number:

BRM 20469 of 2006

Judgment of:

Coker FM

Hearing date:

23 July 2008

Date of last submission:

23 July 2008

Delivered at:

Townsville

Delivered on:

27 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Betts

Solicitors for the Applicant:

Chris Trevor & Associates

Counsel for the Respondent:

Mr Dick

Solicitors for the Respondent:

Barry & Nilsson

ORDERS

THAT BY WAY OF PROPERTY SETTLEMENT:

The Husband pay to the Wife the sum of $46,817.45, with such payment to be made within 45 days of the date of these Orders.
Each party otherwise retain as and for their own property absolutely, all bank accounts, insurance policies, superannuation entitlements, furniture and contents, shares, personal effects or other assets currently in the possession, power or control of that party, and that each be responsible for any liabilities attaching thereto and indemnify the other in relation to same.
Each party have liberty to apply, within 28 days of the date of these Orders, in relation to any point of clarification in regard to the orders and in respect of costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

BRM 20469 of 2006

MS MILLARD

Applicant

And

MR MILLARD

Respondent

REASONS FOR JUDGMENT

This application relates to issues in regard to property settlement as between the applicant wife, Ms Millard and the respondent husband, Mr Millard. The wife commenced the application in the Family Court in Rockhampton on 20 June 2006. In her application filed on that day she sought orders in very simple terms. They were as follows:
i)
That the husband pay to the wife a sum equivalent to

30 percent of the matrimonial assets including superannuation
ii)Such further order or orders as this honourable Court deems meet.
The husband's response in relation to the matter was filed on 11 July 2006. It also was in very short compass. It was simply as follows:
i)That the wife's form 1 application filed on 20 June 2006 be dismissed.
ii)That the wife pay the husband's costs of and incidental to her application.
Thereafter the positions of both the husband and the wife remained little changed. In fact, up to the hearing of this matter, the case outline filed on behalf of the applicant wife still indicated that the wife was seeking payment of a sum, in the vicinity of 30 percent of the total value of the assets of the husband. Only it would seem after evidence was heard in relation to the matter, did the position of the wife alter, at least to some small degree.
What was indicated by counsel in final submissions, in relation to the matter, was that over all, the more appropriate division in relation to the wife would have been in the vicinity of 15 to 20 percent, of the total value of the assets. That was, as I understand it, to include an adjustment of somewhere in the vicinity of 7.5 percent for s.75(2) factors, which it was argued were heavily in favour of the wife. I will obviously come to those particular aspects of the matter later in these reasons.
The position of the husband remained unchanged from that which was set out in the response, filed some two years or so ago. That was to the effect that the wife should retain the property in her possession, that there should be no other adjustment other than, it was suggested, an adjustment in relation to the costs associated with these proceedings.
It is important however, that there be some clarification of certain factual matters in relation to these proceedings. One of the factors that needs to be considered, particularly in light of the relationship being one of very limited duration, is when the relationship commenced. The wife claims that the relationship commenced in or about September of 2001. The husband however, says that there was no relationship between the parties until apparently, that of courting each other, which commenced on New Year's Eve, 31 December 2001 but that there was no cohabitation or relationship, to any real degree, until 2 October 2002.
The husband says that he and the wife commenced at that time, to live together permanently at the husband's residence at the caravan park. The wife says that that was not the case and that the relationship was on foot for at least a period of one year, prior to that. The husband says, that as the relationship developed there were, if you like, opportunities for the wife to spend, on occasion, time at his residence. But because the residence was at the caravan park, which was to all intents and purposes the business operated by the parties, there was a requirement for a certain degree of decorum and therefore the wife firstly did not move in with him and only visited on occasions and certainly from the perspective of others outside, there was clearly no relationship between them until the commencement of cohabitation as the husband says, in October of 2002.
The relevance of those two dates, approximately one year apart is important, because the parties married [in] July 2003 and therefore, according to the husband, a period of about nine months or so after they commenced to cohabitate, but a period of about 21 months, if the wife's date of relationship commencing is to be accepted. The parties separated, it appears agreed, in May 2005. Accordingly from the husband's perspective the relationship was one in totality of only two years and seven months and a marriage of one year and 10 months but of course from the wife's perspective, was an additional year, at least insofar as cohabitation is concerned. In such a short marriage there is relevance in relation to that particular aspect of the matter.
The other matter that needs to be specifically addressed is that there has been considerable dispute, in relation to valuations placed upon the principal asset of the marriage, which is the [omitted] Caravan Park. The caravan park is owned by the "[omitted] Trust" which is held jointly by the husband and his brother. That asset, subject of course to considerable liabilities, was owned by the husband prior to the commencement of the relationship with the wife.
It appears generally however, that there was agreement in relation to the position taken with regard to valuations of the bulk of the matrimonial assets, though as I said, the husband was concerned, at least to some degree, as to the value that was placed by the wife's valuer on the caravan park property. He said that he would have hoped a more realistic value was obtained than that which was before the Court, but in any event, it appears for the purposes of this application, that there was agreement.
Those witnesses therefore required in relation to valuation evidence or in relation to assessment of the parties' liabilities, including particularly the husband's liability to his parent's family company, [P] Pty Ltd, were not required for cross-examination.
Otherwise, I had the opportunity of seeing both the husband and the wife in the witness box and also had the opportunity to consider the evidence, that was called on their behalf. On behalf of the wife a friend, Ms R was called. Ms R had done an affidavit which was filed on 17 June 2008. She says in particular that she was aware of the relationship commencing between the wife and the husband in September of 2001.
However, in her oral evidence, she specifically noted that the husband and his former wife, Ms L, did not separate until November of 2001. She was not re-examined in relation to that particular aspect of the matter and of course, there is therefore some difficulty in accepting that there was a relationship between the husband and the wife in these proceedings, commencing in September 2001, when the husband and his former wife had not separated for some two months or so thereafter.
Ms R was also asked about the friendship that she had with the wife and in particular noted that she, along with the husband and the wife, attended dinners and meals as well as other occasions at a club known as The [omitted] Club which was located about 500 metres from the caravan park. The husband's position in relation to the matter was to say that he was not a great attender there and that more often than not, it was the wife that attended particularly in the company of Ms R.
Ms R was cross-examined in relation to those particular aspects of her evidence and she confirmed that firstly, the wife enjoyed attendances at The [omitted] Club, that she would attend there two or three times a week, which was somewhat different to the wife's evidence which was more of a minimising of the regularity upon which she attended at The [omitted] Club and that she acknowledged that the wife played the pokie machines as well as Keno games and that she would drink there. She was asked whether in fact the wife's favourite drink was a schooner of rum and she confirmed that that was the case.
It is noteworthy that Ms R's evidence was, though called on behalf of the wife, somewhat more corroborative of the position of the husband with regard to both the frequency of attendances at The [omitted] Club as well as the amounts of money spent by the wife on her entertainment.
I was generally impressed by Ms R in relation to the evidence that she gave and accept that the evidence that was given by her whilst in the witness box, was evidence that could properly be relied upon.
On the part of the wife also, at very late notice, was evidence taken from Mr F. Mr F is the sales manager of a motor dealership in the locality, [omitted] Toyota. Mr F, apparently some three months or so prior to the hearing of these proceedings, gave an appraisal of the value of the Land Rover motor vehicle in the possession of the wife. He indicated in his evidence that he could vaguely recall the inspection of the vehicle about three months before his evidence was taken before the Court, and that as he recalled, the vehicle was not in the best condition.
He acknowledged that the figure he had placed in relation to the valuation, namely $1500 was an amount that he had assessed on a wholesale value and was different to what might be considered an appropriate trade-in figure, which he said would be in the vicinity of $4000 - $6000 or what might be the more appropriate figure to be obtained if the vehicle were to be sold privately. He was asked if that were the case, what it was worth privately and he indicated it would be in the vicinity of $4000 - $6000 also.
His answer I thought was quite appropriate, in that he simply subsequently indicated that he did not have a crystal ball and could not predict what the market would pay in relation to a private sale. He did say that the vehicle was worth as much as someone was prepared to pay. He indicated that he would be happy, from his own perspective, in accepting that the vehicle had a value for all purposes other than wholesale, perhaps in the vicinity of $3000 - $4000.
He was also asked in cross-examination whether he had taken the vehicle for a drive or had done anything other than a brief physical inspection. He indicated that the latter was the case.
Mr F's evidence was called in relation to this matter, particularly so that there could be some independent though limited evidence, in relation to the value of the vehicle as the parties had considerably different ideas of what the value should be.
The husband for his part said that he had done a search on the Red Book, which is a valuation guide in relation to motor vehicles and had assessed that it had a value of about $8400, whilst the wife was more inclined to accept the figure that had been suggested originally by

Mr F, of $1500.
Mr F's evidence was of some assistance in relation to this matter and at least provided some independent assessment, other than that which was of a somewhat clinical and sterile nature, arising from consideration of value in the Red Book guide.
For the husband, a former manager was called to give evidence in relation to this matter. That former manager was Mr B. Mr B is a retired gentleman and confirmed that he had worked at the caravan park, along with his wife, as a manager for some years. He said that he had left that employment as a result of a falling out had between him and the wife in these proceedings.
Mr B was asked particularly about evidence that was called in respect of when the wife commenced work at the business. As I indicated previously, there was a dispute between the parties as to when the relationship commenced, but there was almost an exactly identical dispute, in relation to when the wife actually worked at the business.
She says that at the commencement of the relationship, the work performed by her in some management, administrative or clerical roles were taken on and therefore she commenced work, although acknowledging in some sort of probationary capacity, from October of 2001. The husband says that that was not the case and the work commenced in October in 2002, as indicated by the business books.
Mr B corroborated that that was the case. His evidence in his affidavit was that the wife started work in October of 2002 and when cross-examined in relation to that, confirmed that that was his recollection, independent of any documentation which might have been available. He was challenged in that regard, but was adamant that it was not simply as a result of consideration of documentation made available to him, but that it was his recollection that it was certainly in or about October of 2002 and that he was adamant that it was not in or about October of 2001.
He was asked when his recollection was of the relationship beginning between the husband and the wife and again he indicated that he thought that it was sometime in 2002. When asked to be more specific, he was somewhat understandably reticent, to make any specific statement but thought that when it was put to him that it was mid year, it may have been at that time or even a little later.
To some extent of course, that is again corroborative of the husband's position in relation to this matter in that he says, that whilst there may have been a relationship developing between he and the wife, they were discreet in relation to that relationship and certainly not until October of 2002 did they commence to live together.
It was of course corroborative therefore, of the fact that if there was a discreet relationship developing between the husband and the wife, prior to their commencing to cohabit in October of 2002. Mr B may have simply only been aware of the relationship becoming what might be called "full blown", after the wife moved in to the husband's residence.
Mr B was adamant that the wife was not working within the shop or within administrative roles in the business before October of 2002. He was adamant that there was not a probationary period, certainly that he recalled, in relation to any arrangements, be it for one year or a couple of weeks which was suggested respectively by the wife and the husband.
I must say that I was generally impressed with Mr B though of course I note the limitations that arise as a result of attendance by telephone rather than physically attending, before the Court. By the same token however, it is noted that he is a man of 81 years of age and that there would no doubt have been physical difficulties in his attendance and certainly his evidence given in relation to this matter was given in a forthright and, I thought, most acceptable manner.
I accept the evidence of Mr B in relation to both the recollection of the wife's commencement time for work at the business and also the best estimate that can be given in relation to when the relationship between the husband and the wife became public knowledge. If anything, the issue of when the wife began work is corroborative of Ms R’s evidence relating to when the husband separated from his first wife. There is no suggestion that the wife in this matter had any relationship, work or personal, prior to separation.
On my assessment of the evidence, the relationship is far more likely to have commenced, and I find that it did commence in October 2002, at least insofar as cohabitation is concerned.
I turn now to the evidence of the husband and the wife in relation to this matter. The wife generally impressed me in relation to the evidence that she gave. She was, I thought, forthright, particularly when questioned about issues in relation to her habits, including particularly the attendances at The [omitted] Club, though as I indicated, she was not, I thought, as forthright as might have been the case, in relation the frequency of attendances there or perhaps unfortunately, the amounts of money that changed hands, whilst she attended at that club.
She was however, quite honest and open in relation to those particular aspects of her life, other than perhaps some minimising, which is not an uncommon occurrence. She acknowledged that it was certainly the situation that she retained the vast bulk of income that was received by her whilst working in whatever capacity, at the caravan park.
I was however, a little troubled by some of the evidence that was given by her in relation to this matter. In particular, she had determinedly given in her affidavit evidence, evidence to the effect that she had been living at the caravan park since 1995, but in cross-examination in respect of the very first question directed to her, she indicated that evidence sworn by her in the affidavit was not correct and that she had been living there since quite considerably before 1995 and suggested that it may have been since about 1990.
She was also somewhat vague in relation to when other significant events occurred and in particular, when asked about the husband's separation from his first wife, Ms L, and whether that was in November of 2001, indicated that it was much earlier than that. That of course had to be the position taken by her in relation to the matter, because she said that the first commencements of the courting relationship, between she and her husband, was in or about September or October of 2001. That of course flies in the face of the evidence of the husband, but particularly one should note, the evidence of Ms R, given in relation to when separation occurred between the husband and his first wife.
More particularly, she said that she commenced residing permanently with the husband in June of 2002 which again is not in accord with the evidence given by the husband and which is corroborated by the evidence of Mr B.
It was certainly the case that she objected to any suggestion that she had first started work at the caravan park in October of 2002. She acknowledged that that is perhaps the case on the books, but that she had been working there for 12 months previously, on a probationary period. Of course, it needed to be taken into account that she had continued to receive her Centrelink benefits, up until that time.
There were obviously other issues which were of concern in relation to the matter, and in particular, the documentation which was relied upon by the wife as showing that she had been working. There was a document prepared for her bank, in order to support a loan application. The husband's position was to say that that document had been prepared by the wife, that is was simply signed by him so as to ensure that she was able to show a course of employment over a period of time, rather than only having just started work in October of 2002. However, the wife said that it was, in fact, a correct statement and it was corroborative of the starting time by her, in relation to the employment at the caravan park.

I was troubled by that, in light of the fact, that whilst the wife says that she was receiving income and working at the caravan park, she was at the same time continuing to receive Centrelink benefits. Similarly, the wife contends that she started work after the separation of the husband and his first wife and therefore, the dates are not corroborative of the evidence.
Whilst the wife was determined that the relationship had commenced earlier and that her financial contributions also had commenced earlier than that suggested by the husband and acknowledged by Mr B, I was unfortunately unconvinced in that particular regard. Similarly, I was unconvinced in relation to the degree of assistance and support that the wife says she provided in relation to matters of housekeeping within the jointly operated household and, of course, provision of care that was given by her to the husband, particularly with regard to his son,[name omitted]. I was more inclined to think that the wife was unfortunately exaggerating those particular aspects of the matter, just as she had minimised aspects of evidence, in relation to spending time and money at the club, no doubt with the husband on occasion, but also with her friend, Ms R.
I should say also, that I was somewhat troubled by the wife's evidence in relation to the arrangements made with regard to the purchase of the Land Rover motor vehicle, which remains in her possession. The wife says that that Land Rover was purchased for about $14,000 and that her previously owned Mitsubishi Lancer had been traded. She was asked whether it was traded for $1000 and she acknowledged that that was not the case but that it was traded for $3000. She then was asked whether she kept the monies and she indicated that she had not and that those monies were in fact given to her daughter, but that was with the consent of the husband.
She was then asked whether in fact it was therefore the case that the vehicle, which was purchased, was purchased solely by the husband from funds held by him, and that it was purchased for $16,000. She acknowledged that that was the case and when pressed, she also acknowledged that during the relationship, the husband had been responsible for the servicing costs and maintenance costs of the vehicle, including the installation of a new gear box and other expenses, which may have been in the vicinity of $6000.
Her only response in that regard, whilst properly acknowledging that those things had occurred, was that it had come from, as she put it, "our money from the business". I was somewhat troubled by the cavalier nature, therefore, of some of the evidence given by the wife and also the apparent exaggerations in relation to her work within the business and other issues relating to the time spent within the business.
I turn now to the evidence of the husband. I must say again that I was generally impressed with the husband and his evidence given in relation to this particular matter. The husband openly and immediately acknowledged, that the document that was relied upon by the wife, in relation to obtaining funding in respect of the purchase of a cabin

at the caravan park, was a document that was signed by him.

He acknowledged that it was also designed specifically with the intent of misleading the bank, at least insofar as giving an indication of the wife's employment history.
It was evidence which was not necessarily beneficial to the husband but I thought that it was evidence that was given openly and honestly in relation to that particular aspect of the matter. I must say, that in relation to the various issues that he was challenged upon, I generally found the husband to be an open and honest witness in relation to this matter.
In particular, he was challenged in relation to the debt that was currently owing to [P], the family company from whom monies had been borrowed by he and his brother at the initial time for the purchase of the business. He acknowledged that there had not been payments made back to [P], but that the documentation, which was obviously available, showed that there was a loan and showed more particularly, that there was interest to be charged and that at any time of sale there would be a repayment, including the repayment of interest.
I accept that that was a legitimate and at arm's length commercial transaction between the husband, his brother and their parents' family company and that there is no basis upon which the Court, could not properly consider that there was a liability held in relation to [P]. Similarly, I acknowledge and accept that there was a mortgage in favour of the Commonwealth Bank, used toward assisting in the purchase of the caravan park and that the husband also had liabilities in that regard.
More specifically however, I accept that there was an additional loan by the husband from his parents' family company of $316,000 or thereabouts, which monies were utilised in part to pay out his former wife for her entitlements in relation to the matrimonial property settlement. I accept also that other monies received by him, in relation to a motor vehicle accident, had been paid to his brother so as to enable him to move forward with his life, in relation to both the purchase of a property and establishment of another business and that that was done on the basis that it was necessary for that to occur, or that otherwise the only alternative, if the brother was to leave the business, was for the income earning asset, the caravan park, to be sold.
I was generally impressed with the husband in relation to this matter. I gained the distinct impression that he made appropriate concessions when challenged, in relation to the various activities of the wife within the business and, for example, acknowledged the work performed by her within the household and that there was a sharing of the tasks within the household.
In particular, the husband acknowledged that the wife was the primary homemaker and he said that he would not argue with that. He indicated that he did the outside tasks but that the wife's daughter of a prior relationship also helped, in relation to various tasks within the household. The husband readily acknowledged that the wife did most of the cooking and cleaning in relation to their joint occupation of the owner's residence at the caravan park and he acknowledged that the wife kept the home tidy, along with of course his assistance outside and the wife's daughter's assistance, on occasions, when she was at the property.
I thought that the husband made, as I said, appropriate concessions in relation to those various aspects and I must say that I was far more inclined to accept his evidence, in relation to issues with regard specifically to when the relationship commenced, as well as specifically as to when the wife commenced work within the business.
I turn now to issues in relation to the law and its application in relation to this matter. There is a four step process to be followed in relation to such proceedings.
The relevant legal principles are those which are contained within section 79 and section 75(2) of the Family Law Act. The Court must ascertain what the parties assets and liabilities are at the date of trial. The second step is then to consider the contributions that each party has made towards those assets and those contributions can be contributions either of a financial or of a non financial nature, to the family. Contributions to property include financial and non financial contributions made directly or indirectly by or on behalf of a party to the marriage and to the acquisition, conversation or improvement, of the property of the parties.
Contributions to the welfare of the family are the contributions made by a party to the marriage, constituted by their roles as homemaker or parent. The authorities make it clear that contributions to the welfare of the family must be given appropriate weight and are not treated as a token matter or as a contribution, which is of inherently less value than a financial contribution to property.
In assessing the parties' contributions to the acquisition of the assets of their marriage, the Court must consider issues with regard to whether a global approach or an asset by asset approach, is appropriate. The global approach is the more common or generally adopted position in relation to proceedings. Once contributions have been assessed, a third step or stage is required to be looked at which is an assessment of the parties' future needs by reference to the factors which are set out in section 75(2) of the Family Law Act.
Finally there is a fourth step which is a general overview required to be looked at, in order to ensure that justice and equity are met.
The first stage therefore is to consider the assets of the parties for distribution. It would appear that generally there is agreement in relation to many of those assets. They are as follows:
i)A one half share in the caravan park $2,055,000
ii)1976 Volkswagen Beetle $2000
iii)1999 Harley Davidson motor cycle $12,000
iv)An aluminium boat $12,000
v)The proceeds of the sale of the wife's caravan $7000
vi)The proceeds of the sale of the wife's cabin $21,660
In dispute were issues as I have already addressed in relation to the 1996 Land Rover Defender and the difference between the values of the husband at $8400 and the wife at $1500. In light of the comments by Mr F in relation to this matter, I am more inclined towards an assessment that the vehicle is considerably depreciated from when it was purchased, but that a proper value, at least insofar as what a private sale might afford or a proper trade in might afford, is in the vicinity of $3000 - $4000 and I accept that for the purposes of this calculation it should be in the vicinity of $3500.
The other issue that appears not to be agreed in relation to the matter is a sum in respect of household and personal effects. The husband's personal effects are not necessarily to be included, because the furniture and chattels are owned the unit trust, which owns the shares in the caravan park. From the wife's perspective however, there is a dispute in relation to furniture or assets held by her because she says that she holds no such assets. In documentation however, provided in relation to this matter, it appears clear that the wife indicated, subsequent to separation, that there were certain assets held by her including furniture and chattels with a value of about $4000.
It is somewhat difficult to assess when there is no valuation evidence in relation to the matter, but on the documentation that is available, it would appear that there should be at least some value afforded in relation to the furniture and chattel items, which were apparently held by the wife subsequent to separation and I would fix a sum there of $2000, which is minimal but at least recognises some value in relation to property held by the wife, subsequent to separation.
The total of the value of the assets of the parties therefore is $2,115,160.00.
The liabilities of the parties also appear to have been agreed. There is, as I say, the mortgage to the Commonwealth Bank, agreed in the sum of $200,944, the loan from [P] Pty Ltd, in relation to the purchase of the caravan park, of which the husband's share is $815,162 and the personal loan from [P] Pty Ltd to the husband of $316,092. Those liabilities total $1,332,198.
Additionally, there appears agreement in relation to superannuation entitlements of the parties which in the wife's name totals $6734 and in the husband's name $109,790, a total therefore for superannuation entitlements of $116,524.
There is one other issue of dispute between the husband and the wife in relation to this matter and to the calculation of assets and liabilities. It relates to the payment that was made by the husband to his brother, apparently of about $270,000 which clearly came from monies which were held by the husband, as a result of payments received for a motor vehicle accident and personal injuries arising from that.
The wife says that that sum should be added back in, it being clear that the husband says that it was a loan and that it would obviously be required to be repaid to him, with or without interest not being clear, at any time in the future, when the business was to be sold.
It appears clear that that is the appropriate course to follow and that the sum of $270,000 would be required to be added to the matrimonial pool. Just as clearly however, those monies have come entirely as a result of a contribution, paid by the husband, in relation to the matter.
The total value of the assets therefore including the superannuation entitlements and the loan, which is not specifically indicated as being required to be repaid until settlement, is $250,684.00 and therefore the total property pool, net of liabilities is $ 1,169,486.00.
The second step in relation to the matter is of course, a consideration of the issues of contribution. It appears acknowledged on the part of the wife, that there must be a very considerable contribution factor, weighing in favour of the husband. It arises not only of course from the fact that the husband brought in the vast bulk, if not the entirety of the assets of the parties, but also consideration of the fact that it was only a relationship of very limited duration. Therefore, there was little, if any, acquisition of interest in relation to such assets from the passing of time, during the period that the husband and wife lived together.
It would appear that at the commencement of the relationship, the wife had some personal items and as I say, I have brought into account a sum of $2000 in relation to such chattels, as well as the ownership of a caravan that has been agreed at $7000 and her motor vehicle which was subsequently traded and the proceeds were then given to her daughter, in the sum of $3000. The wife therefore contributed perhaps somewhere in the vicinity of $12,000 or thereabouts to the matrimonial pool. The husband's contribution was of course very much greater than that and would be perhaps 100 times the wife's contribution, in relation to the assets of the parties.
In light of the limited time that the parties were together, and in light of the fact that there appears to have been a general sharing of the responsibilities within the household of a non-financial nature, there would seem to be little adjustment that would be made over and above the apportionment between the contribution of the husband and the contribution of the wife. I do not think that there would be a significant adjustment also, in relation to issues of financial contribution. If anything, the evidence would appear to point to the fact that the wife received income from the commencement of the relationship and utilised it almost in its entirety, for her own purposes.
The husband, it appears, was responsible for the purchase of the household grocery items and other goods and chattels. The wife's income was utilised by her for her personal needs and although there was certainly, I'm sure, occasions where the husband received some benefits in that regard, such as payment of various accounts, for meals, goods or chattels, the vast majority of any monies received by the wife during the relationship, were retained by her and to almost an entire degree, all contributions in relation to the joint financial needs of the parties were met by the husband.
For those reasons, it seems to me that there should only be a very small adjustment made to 100 percent contribution falling in favour of the husband. The wife's submissions, as best I could understand them, suggested that there should be overall a distribution of 15 to 20 percent in favour of the wife, including an adjustment of 7.5 percent for the s.75(2) factors. That would mean that the wife's position was to suggest, that there should be a 7.5 to 12.5 percent contribution factor, in relation to the matter. The husband's position was to suggest that it should be, in the vicinity, of about 4.8 percent in relation to such matters.
However, I am not inclined to either of those figures, it being the case that the suggestion of a figure by the wife is, in my view, far too high, in light of the very significant financial contributions made at the commencement of a short relationship and the figure suggested by the counsel for the husband, being more a product of what the wife has already received and therefore a calculation based on a mathematical assumption, rather than an appropriate consideration of the contribution made, in relation to the matter.
I must say that I am of the view that the appropriate distribution, on the basis of contributions by each of the parties, would be 96.5 percent in favour of the husband and 3.5 percent in favour of the wife.
I turn then to the third step in relation to any calculation to be effected in relation to this matter and that, of course, is a consideration of those matters set out in s.75(2) of the Family Law Act. In particular, I note the concerns that were raised in relation to issues with respect to the husband and the wife's health. Unfortunately, little if any independent evidence was produced in that particular regard, but it would appear that whilst the wife is 52 years of age and the husband is 48 years of age, each have, to varying degrees, had health factors which have influenced their capacity to continue to provide for themselves.
The future is far brighter however, for the husband, in that he has a significant interest in the caravan park which is, of course, the principal income deriving asset, for the husband. He acknowledges an income in total of somewhere in the vicinity of $1400 to $1500 per week, which does not, as far as I can assess, include benefits received by way of accommodation, as well as various benefits no doubt received in relation to contribution towards such matters as rates, electricity and other municipal charges.
The wife on the other hand is, at this time, still in receipt of benefits and says that she only has limited opportunities in relation to future employment. It is noteworthy of course, that the wife was not working at the time that the relationship commenced, whenever that might have been, though as I have found, October of 2002, because she was on some form of stress related benefit, as a result of concerns with her employment. I accept certainly that whilst there may be some health concerns in relation to each of the parties, there is a distinct disparity between the circumstances of the husband and the wife.
There are also issues in relation to differences with regard to the responsibilities that both the husband and the wife have. The husband still has two children of his previous relationship with one under the age of 18 years, and the husband still continues to provide in relation to their specific needs. The wife does not have such obligations and responsibilities and if anything, it would appear receives some benefit from one of her daughters, in relation to provision of accommodation et-cetera. The husband is therefore contributing toward the expenses of his children whilst such obligations do not appear to fall upon the wife.
The husband has re-partnered, the wife has not re-partnered and the husband therefore of course has the assistance of his partner, Ms W. They are financially dependent upon each other but again, of course, the husband has the far greater income than that available to Ms W. She is apparently now working in a similar capacity to that which was worked by the wife in these proceedings, prior to their separation.
It is clear that there is, when one considers those various matters, a disparity in the circumstances of the husband and the wife. In my view, some adjustment is again required in relation to the circumstances of the husband and the wife, and it would be one that would favour the wife, particularly in relation to the obvious and ongoing differences in relation to their income and the obvious and ongoing position to be taken in relation to the future employability, certainly of the wife.

In my view, there should be a further adjustment in favour of the wife of 4 percent which would mean that on a final basis, the distribution of property, to be effected as between the husband and the wife, is 92.5 percent in favour of the husband and 7.5 percent in favour of the wife.
That would mean, therefore, on the calculations of assets and liabilities and property retained by each of the parties, a payment to the wife of $87,711.45 and after deduction of those items already retained by the wife, a further payment of the husband to the wife of $46,817.45.
In my view, the fourth step, an assessment of the justice and equity of the situation favours that distribution as determined by me in relation to the matter. It allows the husband and the wife to move forward, the wife with at least some financial contribution towards future establishment of herself, but of course, allows the husband to retain the interest that he currently has in the primary income earning asset of the parties.
I am satisfied in the circumstances that the distribution of 7.5 percent of the matrimonial assets to the wife is a just and equitable distribution of the assets as between the parties.
In the circumstances therefore, the orders of the Court will be:

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 27 August 2008