Moreton and Moreton

FAMILY COURT OF AUSTRALIA

MORETON & MORETON

[2008] Fam CA 1170

FAMILY LAW – PROPERTY – Farming case – Initial contributions – 10.5 year marriage – Liabilities – Taxation and Realisation costs – Assessment of Contributions – Justice and equity of final orders

Family Law Act 1975 (Cth) ss 79 and 75(2)
Child Support Assessment Act 1989 (Cth)

B-H v B-H [2006] FamCA 379
C v C [1998] FamCA 143
Clauson [1995] 18 FamLR 693
Coghlan v Coghlan [2005] FLC 93-220
Garret [1984] FLC 91-539
G v G [2004] FamCA 16
G v G [2001] FamCA 531
Hickey v Hickey ex parte The Attorney General for the Commonwealth [2003] 30 FamLR 355
In G v G [2001] FamCA 1453
In the Marriage of Clauson [1995] FLC 92-595
In the Marriage of Ferraro [1993] FLC 92-335
In the Marriage of Lee Steere [1985] FLC 91-626
In the Marriage of Magas [1980] FLC 90-885
In the Marriage of Mallet [1984] 156 CLR 605
Kowaliw [1981] FLC 91-092
Macgregor v Macgregor [1996] FLC 92-710
Marker v Marker [1998] FamCA 42
Norbis v Norbis [1986] 10 FamLR 819
Omacini v Omacini [2005] FLC 93-218
Pierce v Pierce [1998] FamCA 74; [1999] FLC 92-844
Rosati v Rosati [1998] FLC 92-804
S v S [2006] FamCA 283
V v G [1982] FLC 91-207

APPLICANT:

Mr Moreton

RESPONDENT:

Ms Moreton

FILE NUMBER:

BRC

5963

2007

DATE DELIVERED:

19 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 & 16 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kent SC

SOLICITOR FOR THE APPLICANT:

Mr Steel

Barry & Nilsson

COUNSEL FOR THE RESPONDENT:

Ms McLennan

SOLICITOR FOR THE RESPONDENT:

Anne Murray & Co

Orders

As and by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975.

That within four months of the date of these orders, the husband pay to the wife the sum of $1,100,000.00.
That as and from the date of these orders, the wife relinquish all right, title and interest in the Moreton Family Trust and sign all documents and do all things necessary to relinquish any right, title or interest that she holds in the trust.
That on or before the expiration of 30 days from the date of these orders, the wife execute all deeds and instruments necessary to transfer her interest in the company C Pty Ltd to the husband including, inter alia, the following:
(a) Transferring her shares in the company to the husband;
(b) Resigning as a director of the company;
(c)Executing any other documents necessary to relinquish her right, title and interest in relation to the company.
That, except as otherwise provided for in these orders, the husband is entitled to be the sole legal and beneficial owner of the following:
(a)“[M property]”, in the state of Queensland;
(b)       The husband’s interest in the Moreton Family Trust;
(c)       Any shares held in any publicly listed company by the husband;
(d)       Any investment held in Forest Enterprises Australia by the husband;
(e)       Any plant and equipment situate on M property;
(f)       Any livestock situate on M property;
(g)       The husband’s Colonial Mutual Whole Life policy;
(h)       The husband’s Westpac One account;
(i)        The husband’s Colonial Super Retirement Fund.
That, except as otherwise provided for in these orders, the wife is entitled to be the sole legal and beneficial owner of the following:
(a)       Her shares in any publicly listed companies;
(b)       Her investment in Forest Enterprises Australia;
(c)       Her Westpac E-Saver account;
(d)       Her Westpac Choice account;
(e)The $50,000 she received on 28 June 2006 from the Moreton Family Trust;
(f)       Her Q Super superannuation.
That within 30 days of the date of these orders, the husband and wife sign all documents and do all things necessary to transfer the ownership of the Toyota Landcruiser GXL wagon currently in the wife’s possession to the wife from the trust.
That each party retain all furniture and chattels currently in their possession.
That except as otherwise provided for in these orders, each party shall indemnify the other in relation to any expenses, outgoings and liabilities related to those items of property which they retain or receive pursuant to these orders.
In the event that either party refuses or neglects to do any act or sign any documents required to be signed or executed in compliance with the provisions of these orders, then pursuant to section 106A of the Family Law Act 1975, the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said order and the Affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance. The party in default is ordered to pay all reasonable solicitor/own costs incurred by the non-defaulting party.
Leave is given to the respondent to file the Affidavit of her solicitor, Elvina Ogil sworn 19 December 2008.
That the applicant file by sending via email to the Associate of His Honour Justice Murphy written submissions regarding costs, together with a response to the Affidavit of the wife’s solicitor filed 19 December 2008, by 4.00pm on 9 January 2009.
That the respondent file by sending by email to the Associate of His Honour Justice Murphy written submissions regarding costs by 4.00pm on 30 January 2009.
That His Honour Justice Murphy deal with the matter of costs in chambers unless further oral submissions are required by the parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5963 of 2007

MR MORETON

Applicant

And

MS MORETON

Respondent

REASONS FOR JUDGMENT

About 25 years prior to the marriage and commencement of the cohabitation of the parties to this property dispute, the husband drew in a ballot a grazing property now known as “[M property]”. He has lived on, and worked, that property ever since.
The property is now owned nine thirteenths by the husband and four thirteenths by the trustee for the Moreton family trust. For the purposes of these proceedings it is conceded that the latter is the property of the husband.
In the intervening 38 years, the husband has, prior to the current proceedings, been divorced from two wives, separating from them in 1973 and 1994 respectively. He separated from the wife in these proceedings after 10 and a half years of cohabitation in June of 2006. There are no children of this relationship. Each of the parties have adult children of previous relationships.
When the parties commenced their relationship, M property was valued at about $1.3 million. It contained livestock and plant and equipment.
It is now valued at about $6.275 million. It represents, overwhelmingly, the biggest component of the “property of the parties or either of them” the subject of these proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

Issues

The property

The property of the parties is largely agreed. The husband seeks to have a sum of $50,000 – paid to the wife shortly after separation and spent – added back to the pool and to have same included among the wife’s entitlement as property already received by her.
The wife alleges that the sum was paid as, and used for, living expenses and ought not be added back.
Secondly, significant taxation liabilities are claimed by the husband. The attack (if, ultimately, there was an attack) on those liabilities being included in order to arrive at the net pool of assets, was, I gather, that they were liabilities that might not ever be incurred (because, for example, plant and equipment or livestock might not need to be sold).

Assessment

Although factual issues about a number of matters existed at the trial, their impact on a final assessment, either as to contributions or in the overall result, is somewhat questionable.
Mr Kent SC, who appeared as counsel for the husband, argued that it was possible to approach the component “steps” of the process so as to produce an assessment for each of contributions and what are sometimes called the “section 75(2) factors”. Ultimately, he contended that an overall entitlement of 20 per cent to the wife would see the wife receiving in excess of $1 million in cash and that this was a just and equitable result.
The wife’s amended response sought an order effecting a 40 per cent settlement to her. In argument, Ms McLennan, who appeared as her counsel, might have been taken to concede that the evidence supported an adjustment resulting in an overall result of 25 per cent to the wife. However, I decline to so treat it. I consider that the wife contended that 40 per cent was a just and equitable settlement in her favour and I will proceed on that basis.
The issue then is, by reference to the matters prescribed to be taken into account by s 79(4), what division of the property of the parties or either of them represents a just and equitable settlement between them.
In that respect, as will emerge, the parties are agreed as to the property each will retain. No superannuation splitting order is sought by either party. Each agrees to keep their respective superannuation interest.
Accordingly, the issue can be more narrowly defined: what cash sum ought the husband pay to the wife? That deceptively simple proposition is, however, clouded by a significant matter, relevant both to the already referred to calculation of liabilities (and in particular taxation and realisation costs) and also to what is sometimes referred to as step four of the s 79 process, namely the overall justice and equity of the orders.

Relevant Principles

It is necessary to record that this decision is arrived at cognisant of the statutory requirements and guided by earlier binding decisions of this Court.
The statutory mandate is to not make an order pursuant to s 79 of the Act unless satisfied, in all of the circumstances of this particular relationship, that it is just and equitable to do so.
Whether to make an order, and if so, the terms of that order, depends on a consideration of the matters outlined in s 79 of the Act: the respective contributions of the parties as described in sub-paras (a), (b) and (c) of s 79(4), the effect of any proposed order upon the earning capacity of the parties, the matters referred to in s 75(2) insofar as they are relevant, any other order made under the Act affecting the party or a child, and any child support payable under the Child Support Assessment Act 1989 (Cth). Clearly enough, the last two mentioned factors are not relevant here.
The path to compliance with that statutory regime has been described as either a three-step or four-step approach. It is well established by authority (for example, see In the Marriage of Lee Steere [1985] FLC 91-626; In the Marriage of Ferraro [1993] FLC 92-335; In the Marriage of Clauson [1995] FLC 92-595 and, more recently, see for example Coghlan v Coghlan [2005] FLC 93-220).
The specific matters that assumed particular importance in the context of the evidence and arguments in this case, are:
·The importance of initial contributions and the use to which they were put (and indeed the use to which all contributions were put) (see for example, Pierce v Pierce [1999] FLC 92-844);
·The fact that contributions are to be assessed in a broad way within the context of a wide ranging discretion as distinct from formulation by mathematical calculation. In that respect, in Macgregor v Macgregor [1996] FLC 92-710, the Full Court said over ten years ago:
“We do not think that the adoption of the mathematic approach advocated by [counsel] is supported by authority and indeed we think that it is likely to be misleading and to lead to the discounting of a person’s role as a homemaker and parent, particularly in cases such as this one where the parties have lived in a traditional and complementary relationship as her Honour found in this case.”
(See also the comments by the Full Court over ten years prior to that in Garret [1984] FLC 91-539 at 79,372.)
·Capital contributions made by the wife and how those capital contributions were produced and used.
·The importance to be attached to the contributions in the form of work done by each of the parties on the property and to the welfare of the partnership constituted by the husband and wife. In that latter respect, see for example, In the Marriage of Mallet [1984] 156 CLR 605, and in particular the emphasis by the High Court in that case, that contributions are to be assessed by reference to the contributions of each of the parties “within their respective spheres”.
Although the parties have in this case (and the Court has also very frequently) expressed assessments of relative contributions, adjustments for s 79(4)(e), and the ultimate result, in percentage terms, it is in my view important to bear in mind what the Full Court said in Clauson [1995] 18 FamLR 693 at 714 (there specifically in relation to s 79(4)(e)): “…it is the real impact in money terms which is ultimately the critical issue”.
It is also necessary to bear in mind that the fourth of the “four inter-related steps” is the “preferred approach to the determination of an application brought pursuant to s 79.” It is to:
“…consider the effect of … findings and determinations [with respect to the first three steps] and resolve what order is just and equitable in all the circumstances of the case [case citations omitted].”
(Hickey v Hickey ex parte The Attorney General for the Commonwealth [2003] 30 FamLR 355 at 370).
In that respect, however, I am conscious that so-called “farming cases” do not fall into a special category. The Full Court said in Lee Steere at 440:-
“In our view the correct principle was laid down by Asche J in In the Marriage of Magas [1980] FLC 90-885, a decision of the Full Court on appeal from the Family Court of Western Australia. His Honour said there at 75,591:
“If arrangements can be made which would relieve the spouse who is working a farm as a farmer from selling the farm but at the same time doing proper justice to the claim of the spouse who is not living on the farm, then of course those arrangements should be made.”
However, his Honour then went on to say:
“If there is no other way to do that which is just and equitable then a sale must take place. It becomes an incident to the sad fact that when two persons separate property which might have given them together a reasonable competence will not be sufficient for each when divided. That is an inescapable situation and cannot be used as an argument to deprive one party of that to which he or she is otherwise properly entitled.”
The fact that the subject of property proceedings under s 79 is a farm may give rise to considerations as to the way and means by which property division should be effectuated, a matter which will be discussed later, but there is no “farming case” exception to the ordinary principles applicable under s 79 of the Act …”
Finally, it is clearly established that the Court can adopt either a global approach or an asset by asset approach. In more recent cases (see for example Coghlan) the latter has been referred to as a “two pools approach” to distinguish the treatment of superannuation interests from other property.
It is clear, both by reference to that authority and by reference to the decision of the High Court in Norbis v Norbis [1986] 10 FamLR 819 that either approach is equally open to a Court.

The Property

Initially, points were raised with respect to some items on what became Exhibit C for identification (as an aide memoir), especially the values attributed to livestock and plant and equipment.
Ultimately, however, the pool was, as I indicated earlier, largely agreed as follows:
ASSETS  OWNER  VALUE
M property   9/13 – Husband        $6,275,000.00
4/13 – Trust
Livestock  Trust  $856,158.00
Plant and Equipment  Trust  $433,845.00
Australia Wheat Board Shares  Husband  $272.00
CBA Shares  Husband  $5,950.00
Forest Enterprises Shares  Husband  $1,675.00
Colonial Mutual Whole Life Policy          Husband  $41,778.00
Westpac Account  Husband  $836.00
Westpac Esaver  Wife  $11,540.00
Westpac Choice Account  Wife  $7,076.00
GROSS TOTAL NON-SUPER ASSETS  $7,634,130.00
Superannuation
Wife’s Q Super  $220,381.00
Husband’s Colonial Super  $40,885.00
TOTAL  $261,266.00
GROSS ASSETS INCL. SUPER                 $7,895,396.00
LIABILITIES
Suncorp Business Loan 1  $231,212.00
Suncorp Business Loan 2  $396,319.00
Westpac Mastercard  $1,593.00
Suncorp overdraft  $73,969.35
BoQ lease – Quad bikes  $12,990.00
BoQ lease – Ford tractor  $35,595.00
BoQ equipment finance – Rav 4  $11,990.00
TOTAL LIABILITIES  $763,668.35
NET ASSETS            $7,131,727.65
Missing from that Exhibit as handed up is the disputed “add back” of $50,000 and the four disputed liabilities as follows:
·    Taxation liability on livestock;
·    Taxation liability on plant and equipment;
·    Taxation liability on sale of 2500 acres; and
·    Costs of sale of 2500 acres (at 3% of $1,264,625.00).

The $50,000 paid to the wife

It is said by the husband in his affidavit of evidence-in-chief:
“When [the wife] and I were discussing her leaving the property she said to me words to the effect, “I will need some money to get myself started again.” I agreed that $50,000 would be transferred from the trust to [the wife] for her re-establishment costs. [The wife] and I attended upon our bank, the Suncorp Metway Bank, together at or about the date of separation and $50,000 was transferred from the trust into [the wife’s] personal bank account. At the time of the transfer [the wife] said to me in words to effect, “This money can just be deducted from any payment made to me by way of property settlement.” I agreed with [the wife].”
The wife deposes to a different set of events surrounding that payment. At para 37 in one of two affidavits filed on 12 December 2006 by her, this affidavit being, in effect, an affidavit in reply:
“I refer to paragraph 95 of [the husband’s] affidavit and state that when I left the property on 27 June 2006 I did not have any money as I had put everything that I owned into the business. [The husband] agreed to meet me at Suncorp Bank the next day and he asked me how much I needed. I told him I would need $50,000. At no time was it ever discussed that this money would be deducted from any payment made to me by way of property settlement. I did not have a home or a job and was too unwell to work for 12 months.”
In the other affidavit filed by the wife on 12 December (what might be described as her affidavit of evidence-in-chief) the wife deposed as follows:
“27. I left “[M property]” on 27 June 2006. [The husband] agreed to meet me at the Suncorp Bank in […] the next day as I did not have any money and as I had put everything that I owned into the trust. [The husband] asked me how much money I wanted and I said, “$50,000.” [The husband] also told me that I had the bankcard to use. I only used the bankcard once and that was to pay for the registration of the wagon in my possession as I thought it should still go through the trust books. [The husband] cancelled my bankcard after I used it for this. [The husband] cancelled my MBF membership without letting me know through his solicitor and I was three months without private health cover before I realised what he had done. I took my clothes, photographs, gifts from my family, a queen size bed, two bedside tables and a duchess, set of book shelves and an outdoor setting from [M property] when I left.
28. I was not well enough to obtain a job for a period of 12 months and during this time saw a psychologist for six months to help me get well.
29. [The husband] refused to provide any more spousal maintenance. I had to pay rent, purchase furniture, necessary requirements to live, pay rent and solicitor’s fees. My sister lent me $20,000 at the end of February 2007 which kept me going until I was offered the [teaching] job at [G] State School.”

No precise breakdown of the manner in which that money is spent is deposed to.
I should add that a debt is said to be owing by the wife to her sister in the sum of $20,000. It was not the subject of any evidence at all from the wife’s sister. The wife in cross-examination offered no explanation as to why no affidavit had been filed from her.
I note that the loan is an intra-familial loan. Although the wife indicated in evidence words to the effect that she “intended to pay it back at some time,” it seems to me that there is no cogent evidence that this amount is due now, that demand for all or some has been made, or that it will be immediately repaid from any amount received by the wife, such that it ought be taken into account in the calculation of the property of the parties or either of them.
In respect of the $50,000, I do not think that the differing positions of the parties is necessarily attributable to a lack of veracity on either parties’ part. Rather, I suspect that miscommunication and misperception at or about the time of separation of the nature and purpose of the payment has clouded the recollections of each of the parties.
I am not convinced that there was sufficient meeting of the minds to conclude, as was urged on behalf of the husband, that there was an agreement to have the matter dealt with in the manner he alleges.
In any event, I am not convinced that any such agreement matters to my decision. The payment was not the subject of an order or formal agreement of a type recognised by the Act. At best, even if there was an agreement, it is some evidence of the intention of the parties with respect to that sum of money.
The payment, in my view, falls to be considered as a distribution to a party of property (i.e. cash at bank) that would, in the absence of evidence to the contrary, have formed part of the property available for distribution between the parties.
The decision whether to add back to the pool of assets distributed moneys spent by a party occurs against a legal framework where the general principle is that the Court takes the property of the parties or either of them as it finds it at the date of trial.
An exception can exist where one party has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the effect of which has reduced or minimised their value or the pool of assets.
The Full Court in Omacini v Omacini [2005] FLC 93-218 noted that circumstances in which it is appropriate to notionally add back to the pool of assets fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in circumstances, frequently called “waste” outlined in Kowaliw [1981] FLC 91-092, especially at 76,643-4.
The Full Court rejected in Omacini the notion that “the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation will result in that expenditure being added back” as being unduly simplistic (see for example para 39 of the judgment).
What is crucial is an assessment of the reasonableness or otherwise of the expenditure. The Full Court in M v M [1998] FamCA 42 at para 2.11 held:
“There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.”
That add backs are exceptional has also been emphasised by the Full Court in C v C [1998] FamCA 143, especially at para 46, where it was held:
“Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule”
Here, on the wife’s own evidence, some at least of the money provided to her was used in the expenditure of legal fees. In the usual course, any such money would in fact be added back to the pool of assets.
However, as I indicated, no breakdown anywhere in the evidence indicates what proportion of the $50,000 was spent on what. No cross-examination was directed to the wife in that respect.
I have, as earlier indicated, disallowed the amount owing to the wife’s sister for the reasons indicated. I will, in attempting to effect justice as between the potential for that loan or some of it being repaid, balance that against such component of the $50,000 as is attributable to legal fees and, in disallowing the $20,000 I will, in this instance, deal with the $50,000 as if the whole of it was spent in respect of living expenses.
With that caveat, the $50,000 was paid in the immediate aftermath of separation. It is agreed that the wife’s major capital asset was liquidated in 2002 and the net proceeds put into the marriage. The wife deposes to having no money at the time of separation. She saw a psychologist for six months post separation. She said in her affidavit and again in the witness box that she was unable to work for 12 months by reason of conditions from which she was suffering consequent upon the breakdown of the marriage. I have no reason to doubt that evidence.
I am asked by counsel for the father to infer that, because the money was paid to the wife in a lump sum, as distinct from in periodic sums, and that it was paid as a lump sum in the immediate aftermath of the breakdown of the marriage, that it was a sum paid in the nature of a premature distribution of property to be taken into account in the property settlement as distinct from being a sum more in the nature of maintenance used to pay necessary living expenses.
I am not prepared to draw any such inference. The wife needed to re-establish herself post-separation, she had sold her pre-marital home. It is clear that she left the relationship with very little in terms of immediately available property, cash or other assets.
I find that the $50,000 (bearing in mind the caveat referred to earlier) was in the nature of spousal support in respect of expenses likely to be incurred which can be seen as reasonable. I decline to notionally add it to the pool of assets and consequently decline to account for it as money received as property by the wife for the purposes of settlement of property.

Taxation and other liabilities

I remain unclear as to what, precisely, was the attack made on the deduction of these (potential) liabilities.
Certainly, it seems clear that no issue was taken with the method of calculation conducted by the accountant who deposed to those calculations, Mr R.
He was briefly cross-examined. Mr R agreed that a number of different scenarios were used by him, as is evident from his report. In particular, he indicated that the scenarios were based on, for example, the sale of the whole of M property, as one example, compared to the sale of some 2500 acres as another example.
Mr R was also at pains to point out that, as a result of significant complexities in the calculations, not the least of which was the averaging provisions applicable to primary producers under the relevant taxation legislation, the amounts arrived at by him were not a simple calculation and it was necessary for him to have access to a computer program in order to do those calculations.
I consider that the case for the wife essentially turned on the liabilities being notional and not actual in the sense that they were dependent on, for example, the sale of assets, before they would be incurred.
I should mention in that context evidence by the husband, given in his affidavit of evidence-in-chief, which was not challenged either in the evidence-in-chief of the wife, in the affidavit in reply by the wife or by cross-examination of the husband whilst he was in the witness box. The husband deposes as follows:
“114. I have worked on and improved my property, [M property], for the past 38 years. Over that period I have had three failed marriages and four children. It is my strong desire to retain my property as a legacy for my children. Prior to living and working on [M property] I lived and worked on my father’s property as a farmhand, learning how to run a property and manage stock. I have known no other life than living on properties and managing stock.
115. If this honourable Court were to accept my proposal, I would have to make a cash payment to [the wife] somewhere in the vicinity of $1,500,000.
116. I have received advices from my bank, Suncorp-Metway Pty Ltd that I am at or very close to maximum borrowing capacity taking into account my current stock levels and serviceability calculations. Accordingly, I will be required to sell part or all of my property in order to fund the cash settlement I will be required to make to [the wife]. It is anticipated that the bank will provide me with bridging finance to achieve this.
117. In the event that I am required to sell more than approximately one-quarter of my property to fund the payment I am required to make to [the wife] (i.e., approximately 2500 acres at $600 per acre, equalling $1,500,000), the sustainability of the rest of my property as a going concern will be jeopardised and I anticipate that I will be required to sell the whole of my property.”
A letter from the husband’s banker is deposed to and was not objected to. It records, among other things:-
“Based on current stocking levels and serviceability calculations, the grazing enterprise is at or very close to maximum borrowing capacity (based on all debts including the Suncorp facilities as well as the other bank leasing), therefore:
Any additional funding will have to be done via a bridging facility based on the sale of [M property].”
The relevant liabilities claimed by the husband are:
a)Taxation liability on livestock, $298,334
b)Taxation liability on plant and equipment, $130,296
c)Taxation liability on sale of 2500 acres, $32,586
d)Costs of sale of 2500 acres (at 3 per cent of $1,264,625), $37,938.75.
The precise figures there listed come from a schedule prepared by Mr R, specifically in a number of specific scenarios making a number of related assumptions detailed by him in his report.
All of those taxation liabilities relate to M property, or activities on M property, or property situated on M property.
M property is a cattle property. It produces income through breeding and selling cattle. To supplement farm income the husband operates machinery and does mechanical work. Essentially, dozers and graders are used in contract land clearing work.
The issue of the treatment of taxation and other costs not yet payable has troubled this Court within the context of the overriding task being to effect justice and equity. The Full Court in Rosati v Rosati [1998] FLC 92-804 at para 6.36 said this:
“It appears to us that although there is a degree of confusion and possibly conflict in the reported cases as to the proper approach to be adopted by a Court in proceedings under s 79 of the Act in relation to the effect of potential capital gains tax which would be payable upon the sale of an asset, the following general principles may be said to emerge from those cases:
(1)Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.
(2)If the Court orders the sale of an asset or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.
(3)If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s. 75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.
(4)There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of the sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.”
In G v G [2001] FamCA 1453 at para 104, a later Full Court held:-
“In the course of his oral submissions, senior counsel for the wife properly conceded that although the court in Rosati (supra) was speaking specifically in relation to Capital Gains Tax, the principles therein stated would extend to ordinary (“mainstream”) income tax. We would perhaps go even further, and say that in our view, where the property which is held by a party or the parties to proceedings under s. 79 of the Act was acquired as part of a business of acquiring, developing and reselling real property for profit (i.e. essentially, as trading stock of that business) then, in valuing that property for the purpose of the proceeding, the Court should ordinarily take into account both the estimated realization (sic) costs and the tax (in that case, “mainstream” income tax) which will ultimately be paid on its sale, even if the Court’s orders leave the property in the hands of one party and the sale of it is not seen as an inevitable or even a likely consequence of those orders. We think that statement falls within the purview of the principle stated in paragraph (2) of the above-quoted extract from Rosati [quoted above].”
Even more recently in B-H v B-H [2006] FamCA 379 at para 7.6, the Full Court held:-
“In our view, the Full Court in G and G did not “widen” the ambit of what had been said in Rosati, but rather made clear that expenses referrable to notional realisation of assets in the nature of “trading stock” could appropriately be taken into consideration in cases of that kind. That proposition is neither novel nor surprising.”
The valuation of livestock included in the property pool is based on 1544 head. The tax calculation is based on a sale of 1544 head. In other words, the whole of the trading stock is included as an asset and the tax on the sale of the whole of trading stock is included as a liability.
I have used the expression “trading stock” because it seems to me, and I find, that the livestock is clearly the stock of this business in the sense used by the Full Court in both G v G and B-H v B-H.
I have previously referred to the evidence of the husband with respect to his inability to borrow and the fact that this evidence is unchallenged.
On a scenario he paints, which in turn provides the foundation for calculations done by Mr R, the husband would sell 2500 acres - that is, approximately a quarter of the property.
It is not clear how that 2500 acres is made up (for example, by reference to what paddocks or how it might be, in effect, sub-divided), but the husband does depose to the fact that any further encroachment on his landholding threatens the viability of the overall landholding beyond the mooted sale of 2500 acres and business.
Again, that particular evidence was neither objected to nor challenged, either in the affidavit evidence or in cross-examination.
On the evidence of the husband, if 20 per cent or more is awarded to the wife as an ultimate overall settlement, then the amounts of taxation and realisation costs with respect to that portion of the land seem to me to clearly fall within the purview of the decision in Rosati, being land which is extremely likely to be sold in order to meet orders made by me.
The calculations are not challenged and accordingly it seems to me clear that the figures contained in Exhibit C for identification ought form part of the liabilities of the case.
Equally, on the husband’s case, if I was ultimately to award significantly greater than 20 per cent of the property of the parties or either of them to the wife, then significantly different calculations would need to be done.
In particular, calculations with respect to the taxation and realisation costs payable in respect of the sale of the whole property would need to be taken into account, and, on the assumption that plant and equipment would also be sold at the same time, taxation liability and realisation costs in respect of that would also need to be taken into account.
In my view, then, I can safely find that taxation as calculated by Mr R and appearing in Exhibit C in respect of livestock and the sale of 2500 acres of the M property can safely be taken into account and I ought properly find that it should be.

Plant and equipment tax

The report containing the tax calculations of Mr R in respect of plant and equipment says, on an unnumbered page but under the heading “Plant and equipment sale”:-
“If the entire property and livestock are sold it is reasonable to assume that the plant and equipment would also have to be sold.
Therefore, tax effect calculations should incorporate any taxable “profit” from sale of depreciating assets as well as the profit from sale of the cattle and the taxable capital gain from the sale of property. It seems fair to assume that if a part of the property and part of the herd are liquidated there would not be a need to have a clearing sale of plant and equipment. Consequently, tax calculations incorporating the “profit” from sale of depreciating assets have not been prepared from the part sale of property and/or herd.”
Further, within the same report, Mr R postulates “tax scenario ‘D’”. He says:
“This calculates the additional tax payable if the machinery was sold at valuation resulting in a taxable increasing adjustment of $384,408. The additional tax under this scenario is $130,296 ($150,808 minus $20,512).”
It is this figure of $130,296 which is claimed as a “taxation liability on plant and equipment” in the schedule which became Exhibit C to which I have earlier made reference.
It will be appreciated that this amount is calculated on the sale of all plant and equipment. The valuation of the plant and equipment, which is unchallenged, values each item at a fair market value. That is, it assesses an amount that would be received for each item of equipment if an arm’s length sale were conducted with respect to each item.
There is no evidence from the husband (as distinct, for example, from his evidence with respect to the sale of the 2500 acres) that any plant and equipment would be needed to be sold in order to effect any distribution to the wife or otherwise.
The nature of the plant, equipment, machinery and the like listed in the valuation, which, I should add, is also included in a depreciation schedule for taxation purposes, is, in my view, such that it likely to be sold, replaced and depreciated over time until its useful life in each case is finished.

There is nothing apparent from the nature of the equipment which would indicate that a sale of any of it is inevitable, or even likely, in the sense used by the Full Court in Rosati.
In terms of the principles emerging from the Full Court decision in Rosati:
·The method of valuation is fair market valuation, that is, as if each item was sold at arm’s length;
·I am not ordering the sale. There is no evidence to suggest that a sale of plant and equipment is likely;
·I could not find on the evidence that any sale of any equipment was inevitable, whether to fund any payment to the wife or otherwise;
·It cannot be seen, in my view, as stock in trade, which is of its nature, property acquired for sale and replaced with other goods for sale;
·Some of the plant and equipment is consistent with it being income producing, other of the plant and equipment is not;
·It could not be said to have been bought for investment purposes in the sense in which that expression is used in Rosati and the other cases which I’ve mentioned.
It is possible, but by no means likely, that some, but by no means all, assets may be sold, although, as I have indicated, there is no specific evidence to that effect.
I consider that it is not just and equitable to deduct the liability for taxation in respect of plant and equipment.
Balancing the competing considerations evident in any assessment of whether a notional liability is taken into account as contemplated by Rosati, I intend to take in the potential tax liability in respect of plant and equipment as a s 75(2) matter (specifically, s 75(2)(o)).
I note that the claimed taxation liability represents what would be in the region of about 2% of what is likely to be the approximate net pool of assets for distribution. It by no means follows, I should immediately add, that a “dollar for dollar adjustment” be made pursuant to s 75(2) in respect of this matter – indeed any such adjustment must take account of the paucity of evidence just referred to.
In summary, I find:
(1)The $50,000 paid to the wife ought not be added back to the pool of assets and consequently added to the property of the wife already received;
(2)The claimed taxation liability in respect of livestock should be taken into account in arriving at the net pool of assets;
(3)The sale of at least 2500 acres will be required to meet any order, and for the purposes of arriving at a net pool of assets which will allow dollar values to be attributed to assessments of contributions in s 75(2), I will take that liability into account;
(4)Similar principles apply precisely with respect to the realisation costs of those 2500 acres;
(5)I will not allow a liability for taxation on plant and equipment, but rather will deal with that potential liability as a matter to be taken into account pursuant to s 75(2).
It will be appreciated that, if, ultimately, a decision is made that sees the wife receiving more than 20 per cent of the pool, a number of different calculations will need to be made. I have concluded, for reasons which follow, that the wife’s ultimate entitlement will be close to that figure.
Thus, the “property of the parties or either of them” within the meaning of s 79 comprises:
ASSETS  VALUE
“[M property]”   $6,275,000.00
Livestock  $856,158.00
Plant and Equipment  $433,845.00
Australia Wheat Board Shares  $272.00
CBA Shares  $5,950.00
Forest Enterprises Shares  $1,675.00
Colonial Mutual Whole Life Policy  $41,778.00
Westpac Account  $836.00
Westpac Esaver  $11,540.00
Westpac Choice Account       $7,076.00
GROSS TOTAL ASSETS                 $7,634,130.00
SUPERANNUATION
Wife’s QSuper  $220,381.00
Husband’s Colonial Super  $40,885.00
TOTAL  $261,266.00
GROSS ASSETS INCL. SUPER                $7,895,396.00
LIABILITIES
Suncorp Business Loan 1  $231,212.00
Suncorp Business Loan 2  $396,319.00
Westpac Mastercard  $1,593.00
Suncorp overdraft  $73,969.35
BoQ lease – Quad bikes  $12,990.00
BoQ lease – Ford tractor  $35,595.00
BoQ equipment finance – Rav 4  $11,990.00
Taxation liability on livestock  $298,334.00
Taxation liability on the sale of 2500 acres  $32,586.00
Costs of sale of 2500 acres (a 3% of $1,264,625)          $37,938.00
TOTAL LIABILITIES  $1,133,526.35
I should add that of the list of assets just described, it is accepted that the wife will receive the following:
Toyota Landcruiser  $26,000
Westpac E-Saver   $11,540
Westpac Choice Account  $7076
Q Super   $220,381
Total property  $264,997

Assessment Of Contributions

The essential task is to discern a just and equitable outcome in respect of contributions in circumstances where the broad parameters of the case are fairly readily defined. The overwhelming bulk of the pool of assets is comprised of the M property, which is a property owned, worked and developed by the husband for the 25 years pre-marriage and where the relationship, and the contributions within the relationship, comprise 10 and a half of 38 years of ownership.
On any view, the overwhelming bulk of the initial capital contributions to this relationship came from the husband.
He contributed M property and the livestock and plant and equipment on M property. At the time, M property was a working property producing income from its sale of cattle, and it was the property from which the husband operated his other business of grading and earthmoving.
There is little doubt, and indeed the evidence is clear, that the value of M property has increased from approximately $1.3 million at the commencement of the relationship to approximately $6.3 million some 12 years or so later.
There is equally little doubt that that increase in value is attributable to what might be described as market forces. The single expert property valuer refers to this matter in the valuation report prepared by him, and I will make some specific reference to that issue later in a separate context. This finding is made to distinguish the increase in value from being attributable to, for example, any particular enterprise, improvements or the like undertaken by either of the parties, or both of them, during the course of the relationship.
An unencumbered house property was owned by the wife at the commencement of the relationship. That house property was preserved until approximately 2002, during which time it was used by the wife’s adult children as a place to live.
The wife deposes to no necessity for her to sell the property; rather she says it was sold because she “had no further use for it”.
The evidence suggests that the property was purchased approximately two years prior to the commencement of the relationship for approximately $165,000. It was sold some eight or nine years later for $173,000. The net proceeds were about $158,000. That sum was contributed by the wife to the marriage.
Early in the relationship the wife lent to the husband $50,000 in order for the husband to complete the payment of moneys owing to his second wife pursuant to a property settlement effected with her. That loan was repaid (interest-free) from the trust within two years of the money being lent.
There were numerous issues relating to who did what, and how much, during the course of the relationship. In my view, the finding clearly open on the evidence is that each of these parties worked extremely hard, as is frequently the case in respect of rural living and rural properties, during the course of their relationship.
Using the words of the High Court, each of the parties contributed, in my view, appropriately and wholeheartedly within their respective spheres.
In that respect, the wife worked for the first six years in her chosen profession as a teacher. She deposes to the fact that, during that time, it was necessary for her to drive from M property to the school where she worked. When she returned to M property on the weekends she assisted on the property in what she says are significant ways.
The contributions of varying types made by each of the parties are, as it seems to me, what one might expect from an intact marriage partnership conducted in respect of rural property, particularly when, as it seems clear was the case here, significant difficulties such as drought apply.
Moreover, other contributions, in this case indirect contributions, and contributions to the welfare of the family, as it might broadly be described, were also made by each of the parties in what also might be regarded as an ordinary incident of this marriage partnership.
For example, the wife deposes, and the husband does not appear to challenge, that, at various times, the wife rendered assistance to his mother, and, in particular, on an occasion when his mother had sustained a broken bone.
In a similar vein, the adult children of the parties availed themselves of the property. In particular the husband deposes to the fact that M property was used by the adult children, or at least some of the adult children, of the wife for the purposes of running cattle and the like.
Nevertheless, when, what is in my view, an appropriate overview is taken of the case, what stands out is the initial contribution of the property, M property, and its attendant livestock and plant and equipment owned for a very long time pre-marriage by the husband.
That is not only a contribution of a capital asset, but, of course, it also provided a home for the wife and part of the income of the marriage partnership.
I am acutely aware that great care must be taken in having regard to the results of earlier decided cases. Axiomatically, each case turns on its own facts, and as the High Court has pointed out, the discretion pursuant to s 79 is particularly broad.
In that respect I have in mind, for example, the words of Watson J in V v G [1982] FLC 91-207. Watson J was speaking only a few years after the commencement of the Family Law Act, but in my respectful view, those views still hold true. His Honour said, at page 77,096 of the judgment:
“In the course of preparing this judgment, I glanced through all judgments relating to property and maintenance since early 1976. There has been extensive over-reporting. Were I today writing a text book on family law, I would have great difficulty distilling principle from a triune subjectivity which surfaces in many cases.”
Nevertheless, in assessing contributions, additional comfort can be gained by attempting to place this particular assessment by a trial Court within a context.
Moreover, whilst recognising that each case turns on its own particular facts and whilst recognising how broad the discretion is legislated to be, there is nevertheless merit in attempting to provide some measure of consistency in respect of decisions relating to the section.
In Lee Steere v Lee Steere [1985] FLC 91-626, there was an eight-year marriage that produced three children who were all young at separation. The husband in that case brought to the marriage a farming property which was transferred from his father, and he brought to the marriage an interest in an adjoining property. The wife, by contrast, brought very little to the relationship. The parties together ran the farm. A significant component of the wife’s contribution was the contribution she made in the role of homemaker and parent to three very young children. At first instance the Court awarded 10 to 11 per cent to the wife. On appeal, the Full Court assessed contributions as being in the proportion 20 per cent to the wife and 80 per cent to the husband.
Pierce & Pierce [1999] FLC 92-844 was not a farming case, but, in that case, there was a 10 year cohabitation and there were two children of the relationship who resided with the husband after its cessation. There, the asset pool was relatively small but the husband had brought to the relationship the overwhelming bulk of it. The husband was in full-time employment, the wife was in intermittent employment but was the primary caregiver for the two children. At first instance the Court awarded 45 per cent by way of contributions to the wife. On appeal that was reduced to an award which saw contributions as being assessed 30 per cent in favour of the wife.
In G v G [2001] FamCA 531 the relationship subsisted for about 10 years and there were two children of the relationship aged 10 and eight at the relevant time. This, too, was a farming case. At the commencement of the relationship the husband brought to it an interest in remainder in two parcels of land together with some miscellaneous other assets. The wife brought to the relationship a car and some furniture. Throughout the relationship the parties worked on the farm, the husband carrying out the predominant work on the farm and the wife predominantly caring for the two children. The wife was also in employment during the course of the relationship. The Court found that the appropriate assessment of contributions was 25 per cent to the wife and 75 per cent to the husband.
It is, I think, important to illustrate, by way of contrast, two cases where the ultimate assessment of contribution was similar to that which is contended for by the wife in this case.
In G v G [2004] FamCA 16 an assessment of contributions was made in the proportion 40 per cent to the wife and 60 per cent to the husband. That was a case in which the parties had jointly acquired a Victorian farm property that both of them had worked on. The husband had obtained a $20,000 inheritance from his father’s estate with which the farm property was acquired. He undertook the majority of the farm work. He also contributed some lump sum payments to the marriage including a personal injuries pay-out and a $50,000 inheritance from his mother’s estate together with a severance package. The wife contended that she too worked on the farm property. Predominantly she cared for the children and looked after the home. After the husband’s personal injury she commenced work. Significantly, that was a relationship of 29 years – almost three times the length of the instant case – and at the time that the case was conducted there were three adult children.
In a similar vein, in S v S [2006] FamCA 283 contributions were assessed at 32 per cent in favour of the wife and 68 per cent in favour of the husband. That, too, was a farming case. The property was purchased by the husband’s parents in his name and comprised some 364 acres. The husband was a partner otherwise in the farming partnership of his parents. Again, the wife, in terms of initial capital contributions, contributed very little by comparison. The husband contributed $20,000 to the purchase of the farm and the wife became a partner in the farming partnership. She too contributed $20,000 to the purchase of the property using inheritance money which she obtained from her mother. That, however, was, again, a much longer relationship at 18 years, almost twice the length of the present case, where and there were two children.
It has frequently been said that the significance of initial capital contributions can, over time, diminish as the contributions made in a miscellany of different ways by each of the parties to the marriage take on greater importance by reason of the length of time over which those contributions are made.
It can be seen that in both G & G and S & S, where there were very long marriages, the contribution assessment resulted in a finding in favour of the wife at about the sort of level that the wife would contend for in this case.
The issues which the wife would seek to advance in respect of such a contribution in this case, are, to my thinking at least, somewhat unclear. In my view the evidence clearly reveals that the contributions, in the sense in which that expression is used within s 79(4), overwhelmingly favour the husband.
In no sense is that to diminish the indirect contributions or the homemaker contributions or the contributions made by the wife working or contributing the capital sum during the course of the relationship.
Rather, it seems to me to reflect appropriately the significant role that the previous ownership and continued ownership of M property and the increase in value of that property due to market forces plays in the context of what might be a just and equitable assessment of the respective contributions.
In my view, contributions ought be assessed in the proportion of 77.5 per cent to the husband and 22.5 per cent to the wife.

Section 79(4)(e) – The “Section 75(2) Factors”

It now falls to consider the matters referred to in s 79(4)(e), that is, the matters referred to in s 75(2) to the extent that they are relevant.
The assessment of contributions mooted by me would see the net pool of assets earlier outlined becoming tolerably sate in order to make calculations. Thus, the wife would receive a cash adjustment in excess of $1.2 million. That money would be received by her as a cash sum.
The husband, on the other hand, would retain M property, the plant and equipment and livestock. He retains, then, a property of significant value, but that property is subject to the liabilities as previously agreed and found by me.
Furthermore, the evidence suggests that the current value of the property is at a particular high by reason of a confluence of factors referred to by Mr N in his valuation.
In particular, Mr N sets out an evaluation of the factors relating to the primary business of the property, namely the sale of beef. Obviously, the price of beef has a significant impact on the value of a beef cattle property. Mr N sets out the Queensland cattle market index during the period January 2007 and October 2008. He comments:
“During this period, the rural property market peaked, particularly for good quality scrub grazing properties improved to permanent pastures and capable of finishing cattle at premium weight for age prices. Factors influencing the buoyant market included:
·Low interest rates and bank lending policies …
·Generally strong cattle prices and favourable season conditions boosting confidence in the industry.”
He goes on to say:
“Since January this year a notable slowing in demand and sales has occurred, resulting in an easing in values generally which has removed the premium on grazing land, with the exception of a few sales acquired for drought and relief purposes.”
And:
“In this regard it is my opinion that unless there is a particular adjoining land owner in the market to acquire [M property], current market value is below the valuation of $6.6 million bare of stock and plant applied as at 15 January 2007.”
It will be immediately appreciated, then, that Mr N’s unchallenged evidence is to the effect that, in a period of less than two years the property to be retained by the husband has decreased in value by about $300,000. There is some reason to be concerned that the value of the property to be retained by the husband might fall further.
Moreover, in retaining that property the husband will also take responsibility, as a 60-year-old man, for the meeting of two business loans totalling between them over $600,000.
In order to satisfy the contribution assessment as made by me, it will be necessary for the husband to sell, at least, a quarter of the property that he has owned for 38 years. In that respect, it is to be noted that his affidavit reveals, and it is not challenged, that his average income over the last 14 years, from all sources, has been in the region of about $30,000 a year.
Further, the husband has the potential taxation debt in respect of any plant and equipment that might need to be sold to which I have earlier made reference. He has little superannuation and is aged 60. Realistically, both in respect of his income level and the nature of the employment engaged in by him, there are not good prospects of him increasing that superannuation entitlement significantly in the ensuing years.
I note in that respect that, although working the property for now nearly 40 years, the husband’s total superannuation entitlement is approximately $41,000. The husband has worked the property since separation and essentially works the property by himself. He deposes to no borrowing capacity and I have no reason to doubt his evidence in that respect, and as I have earlier indicated, evidence in that respect was not challenged.

By contrast, the wife will receive, in respect of the mooted contribution assessment, in excess of $1.2 million. She has sold her house, but on her own case had “no use for it”.
She is currently employed as a teacher and as part of that employment lives in a residence next-door to the school which is subsidised by her employer. She pays about $75 per week. She has, then, no immediate need to re-house.
She deposes to no specific needs in respect of her post-separation life, although I note that the evidence reveals she left M property with little in the way of furniture or other assets. However, she will, in that respect, on the mooted assessment of contributions, receive a very significant cash sum. There is the possibility of repaying the debt to her sister earlier referred to.
She is currently 53 years of age. Her evidence is that she intends continuing working until she is 65. She suffers from no health difficulties at the present time which would see any impediment to that occurring.
In her current employment as a teacher, she earns approximately $80,000 a year gross, which equates to approximately $61,000 a year net.
She is contributing approximately $68 a week to superannuation. Her employer makes compulsory contributions to that superannuation fund. There is little evidence to suggest anything other than that her current superannuation

“valued” as about $260,000 will increase over the ensuing years of her employment.
Taking all of those matters into account it seems to me that a small adjustment to the otherwise mooted contribution assessment ought be made in favour of the husband.
In my view an adjustment is called for in the region of about $200,000.
In broad terms, that adjustment represents about three per cent of the net pool.
It is to be noted that the asset pool consists of a number of figures which on their face appear to have significant precision. In a similar vein, the parties and the Court use percentages in order to perform what purport to be precise calculations. In truth, this is a pretence in the sense that the exercise is the application of a broad discretion and elements of the “pool” of property are likely to vary with a number of different factors. The calculation of a precise dollar figure based on the application of a percentage to what are, in truth imprecise numbers, produces an equally “false precision”.
Bearing those factors in mind, the calculation results in an overall assessment to the wife of about 19 per cent.
The figures undertaken by counsel for the husband in respect of what the husband asserted was the pool (which has now changed as a result of the findings made by me) sees the wife receiving $1,021,317. A precise calculation of 20 per cent would see the wife receiving a cash sum of $1,087,377.
I propose to order that the wife receive, in addition to the property otherwise received by her, the sum of $1,100,000.

Are the Resulting Orders Just and Equitable?

I need to examine whether, having arrived at that conclusion by rounding up the calculations otherwise made by me with reference to the second and third steps in the preferred four-step process, such a result is otherwise just and equitable.
I have referred to many of the things which I would take into account in making that assessment when examining the s 75(2) factors.
The wife entered a 10 ½ year relationship with a house property valued in the region of $165,000 and other chattels and is leaving 10 and a half years later, having made a number of significant contributions to the marriage with superannuation, chattels and a cash sum of $1.1 million – a total of about $1.36 million altogether. She is earning approximately $80,000 a year, has potential superannuation growth resulting from, at the least, compulsory contributions over the next 12 years. She is currently residing in subsidised housing connected with her employment.
I consider the order represent a just and equitable settlement of property in her favour.
For those reasons I order in accordance with the Minute of Order provided by counsel for the husband at the conclusion of these proceedings save that in para (1) I will delete the figure $1,021,317.60 and substitute therefore $1,100.000.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 19 December 2008

[2008] FamCA 1170

19 December 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Constructive Trust

Fiduciary Duty

Injunction