Mulhall and Murphy

[2014] FCCA 2253

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULHALL & MURPHY [2014] FCCA 2253

Catchwords:
FAMILY LAW – Application for alteration of property interests – assessment of contribution and future needs – just and equitable order.

Legislation:

Family Law Act 1975, ss.75, 79

Aleksovski & Aleksovski (1996) 20 FamLR 894
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
Stanford & Stanford [2012] HCA 52

Applicant: MR MULHALL

Respondent: MS MURPHY

File Number: WOC 986 of 2012

Judgment of: Judge Altobelli

Hearing dates: 27-28 March and 3 July 2014

Date of Last Submission: 1 August 2014

Delivered at: Wollongong

Delivered on: 26 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: Verekers Lawyers

Counsel for the Respondent: Mr Cook

Solicitors for the Respondent: Legal Solutions

Solicitors for the Independent Children's Lawyer: Mr Davies of Maguire & McInerney Lawyers

ORDERS

(1)That within thirty (30) days of the date of these Orders, the Respondent Wife shall do all acts and things and sign all such documents necessary to transfer to the Applicant Husband all her right, title and interest in  the former matrimonial home situate at and known as Property C, being the whole of the land contained in Certificate of Title Folio Identifier (omitted) in the state of New South Wales, and thereafter the Applicant Husband shall indemnify the Respondent Wife and forever keep her indemnified against any liability in respect of the property including but not limited to the payment of water and council rates, land tax and insurance payments.

(2)That contemporaneously with the transfer referred to in Order 1 above, the Applicant Husband shall pay to the Respondent Wife the sum of $106,927.30.

(3)That failing compliance with Orders 1 and 2 above, the parties shall forthwith join in and do all acts and things necessary and execute all deeds, documents and instructions to effect the sale of the property situate at and known as Property C, being the whole of the land and all its improvements contained in Certificate of Title Folio Identifier (omitted) by private treaty and shall place the property in the hands of an agent agreed upon between the parties for sale at an agreed price or at a price determined by an independent valuer agreed upon between the parties, OR and failing such agreement, at a price determined as the fair market price by the President for the time being of the New South Wales Division of the Australian Property Institute which decision shall be final and binding upon the parties.

(4)That upon completion of the sale of the Property C property in accordance with Order 3 above, the parties shall distribute the proceeds of sale in the following order and priority:

(a)In discharge of the mortgage presently encumbering the former matrimonial home with the (omitted) Bank;

(b)In discharge of any Council and water rates;

(c)In payment of real estate agent’s proper commission arising from the sale;

(d)In payment of proper legal costs and expenses arising from the sale;

(e)In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuer’s fees in appropriate;

(f)In payment of the amount of $106,927.30 to the Wife;

(g)In payment of the balance then remaining to the Husband.

(5)That in the event a purchaser for the Property C property is not found within six (6) months of the date the property is listed for sale or as otherwise agreed, the parties shall do all acts and things and execute all such deeds, documents and instruments as may be necessary to list the property for sale by public auction at an agreed price.

(6)That in the event that the parties are unable to agree upon an auctioneer, the auctioneer shall be nominated by the real estate agent marketing the property.

(7)That upon completion of the sale by auction, the proceeds of sale are to be distributed in accordance with Orders 4(a) to (g) above.

(8)That for the purposes of Order 5 above, the parties shall do all acts and things necessary to cause the property to be sold by way of public auction on the following terms:

(a)That such an auction take place within six (6) weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;

(b)That the agent be as agreed between the parties, or failing agreement for more than seven (7) days, as appointed by the President for the time being of the Australia Property Institute Inc. (NSW Division) whose decision shall be final and binding upon both parties.

(c)That the reserve price for such auction be as agreed between the parties or failing agreement for more than seven (7) days, as determined by the selling agent;

(d)That the parties pay all auction expenses as requested by the selling agent as and when they fall due;

(e)That the Husband shall do all acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchases;

(f)That either party be at liberty to bid on the purchase of the property at auction;

(g)That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.

(9)That in the event that the property does not reach the reserve price and the parties are unable to negotiate an agreed sale price with the highest bidder at the auction referred to in Order 8 above, then the parties shall do all acts and things and sign all deeds, documents and instructions as may be necessary to cause the property to be sold by way of subsequent auction on the following terms:

(a)That such an auction take place within six (6) weeks of the date of the last auction;

(b)That the agent be as agreed between the parties, or failing agreement for more than seven (7) days, as appointed by the President for the time being of the Australia Property Institute Inc. (NSW Division) whose decision shall be final and binding upon both parties.

(c)That the reserve price for such subsequent auction be an amount that is five per cent (5%) lower than the previous reserve price;

(d)That the parties pay all auction expenses as requested by the selling agent as and when they fall due;

(e)That the Husband shall do all acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchases;

(f)That either party be at liberty to bid on the purchase of the property at auction;

(g)That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.

(10)That in the event that the auction referred to in Order 9 above is unsuccessful, the property is thereafter to be listed for subsequent auctions in accordance with the provisions of Order 9 above.

(11)That upon completion of the sale by auction, the proceeds of sale are to be distributed in accordance with Order 4 above.

(12)That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife are entitled to be the sole legal and beneficial owners, to the exclusion of the other, of all other items of property both real and personal of whatsoever nature and kind in the possession of such party as at the date of this Order, and for this purpose:

(a)The clothing, jewellery, furniture and special effects in the possession of each of the parties are deemed to be owned by the party in possession;

(b)Bank accounts are deemed to be in the possession of the person whose names appears on the bank’s record thereof;

(c)Insurance policies are deemed to be in the possession of the beneficiary thereof;

(d)Motor vehicles are deemed to be in the possession of the person whose names appears as the registered owner;

(e)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements both current and potential and that the other party has no claim against such benefits whatsoever; and

(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

(13)Within sixty (60) days, the Husband and the Wife each pay to the following creditors the following amounts:

(a)To (omitted), the amount of $3,000 each;

(b)To (omitted) Pty Ltd, the amount of $5,846 each;

and each be otherwise solely liable for any other monies owing by each of them to their respective mother or father as the case may be.

(14)That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instruction upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

(15)That should a sale of the Property C property become necessary pursuant to these Orders, both parties are to do all things necessary to obtain a (omitted) certificate and Certificate of Occupancy, and if work is required to be undertaken to the said property in order to obtain such certificates, it is to be borne by the parties in shares equivalent to the interest allocated to them pursuant to these Orders.

(16)That the parties have liberty to apply before Judge Altobelli in relation to the interpretation, implementation and enforcement of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 986 of 2012

MR MULHALL

Applicant

And

MS MURPHY

Respondent

REASONS FOR JUDGMENT

Introduction

1.This is an application for alteration of property interests, commonly known as an application for property settlement. The Applicant is the Husband. He is 46 years old. The Respondent is the Wife. She is 46 years old. Their relationship formed in 2003, cohabitation began in early 2004, marriage in (omitted) 2005 and final separation in April 2012. It is common ground that they separated between 2008 and 2009 for a period of between 12 and 18 months. 

Background

2.The parties have one child, X who is eight years old.  At the hearing they entered into Consent Orders that provided for X to live with his mother, for her to have sole parental responsibility, but not to spend time with his father. The Wife has two children from a previous relationship, aged 13 and 15. They lived with the Husband throughout the period of the relationship, apart from the period of separation.

3.The Husband describes himself either as a (occupation omitted).  He lives in (omitted) in the (omitted) region of New South Wales. The Wife describes herself as a (occupation omitted), and she lives in the parties’ jointly owned property at Property C, in the (omitted) region of New South Wales.

4.The relationship between the parties was an unhappy and, at times, violent relationship.  During the course of the relationship the Husband suffered a serious workplace injury resulting in the loss of an arm.   These are matters of background, but help to understand the lack of trust that they had for each other, and the many discrete issues that needed to be determined in the course of this hearing.

5.At the time of cohabitation, the Wife owned a property at Property B, which she still retains today.  It is still encumbered by a mortgage.  In addition, it seems common ground between the parties that the Wife had borrowed $60,000 from her mother in order to pay out her former husband.  There is a dispute about whether the Husband had, at cohabitation, assets or liabilities.  Findings will need to be made in this regard.  There is no dispute between the parties, however, that she made the greater initial financial contribution.

6.Both the Husband and the Wife worked throughout the marriage, apart from a period when their son, X, was born. Whilst there is a dispute about this, the evidence does tend to suggest that, when the Husband was working, he was earning generally more than the Wife was. There is an issue between the parties as to whether the Property B property was, in effect, negatively geared or positively geared, and if it was negatively geared, whether, and if so to what extent, the Husband made any contribution for the purposes of s.79 of the Family Law Act 1975, towards that property.

7.During their relationship the parties purchased a home at Property A, and this was subsequently sold, it would appear at a financial loss to the parties.  There is a dispute between the parties as to who contributed what towards the acquisition of the Property A property.

8.Shortly after the sale of the Property A property, the Husband received the compensation payment arising out of his injury.  There is broad agreement between the parties that he received about $1.4 million, though there is some minor disputation as to whether this includes superannuation or not.  The characterisation of this compensation payment is not in dispute between the parties, but how it should be treated for contribution purposes, as well as future needs purposes, is a substantial dispute between the parties.

9.Using the compensation proceeds, the parties purchased what became the jointly owned family home at Property C.  They demolished the old home and constructed a new one through (omitted).  They had significant issues with the builder, which resulted in the contract with the builder being terminated, and the parties themselves completing the property, after the builder had reached lock-up stage.  There were subsequent proceedings in the Consumer Tenancy and Trader Tribunal.  There is broad agreement between the parties that a significant amount of money was lost as a result of unsuccessful proceedings in the Tribunal, and then the cost of actually completing the property.  In short, the Husband’s case is that all of his compensation monies went into finalising the Tribunal litigation and completing the property to its present condition.  The Wife’s case is that the Husband has not accounted for the full sum and has used a considerable amount for his personal use.  

10.The above is an overview of the facts only.  The Court will need to make an assessment about contribution at the time of cohabitation, and separation.  There are many disputes between the parties about liabilities and add-backs, which are particularly contended for on behalf of the Wife.  Each of these issues will be discussed below.  It will be necessary to make findings as to the credibility of each party.

The hearing and the evidence

11.The hearing took place over three days, 27 and 28 March, and 3 July 2014.  On the scheduled day two of the hearing, 28 March 2014, the Wife was unable to proceed.  The matter was adjourned, but on the basis that the costs of the Husband were reserved.  This is a matter to be dealt with in the context of any subsequent costs application.  The matter concluded on 3 July 2014, but it was not possible to take oral closing submissions that day.  Accordingly, written submissions were provided, with the last submission received on 1 August 2014.

12.The Applicant Husband’s case relied on the following documents:

a)Affidavit of Mr Mulhall, filed 21 March 2014;

b)Updated Financial Statement, filed 21 March 2014; and

c)Affidavit of Mr R (the Husband’s father), filed 21 March 2014. 

13.Mr R was not required for cross-examination.  The Applicant Husband was extensively cross-examined.  The Husband was represented by Mr Alexander of Counsel.

14.The Respondent Wife relied on the following documents:

a)Affidavit of Ms Murphy, filed 19 March 2014; and

b)Financial Statement, filed 19 March 2014.

15.There were no other witnesses in the Wife’s case.  The Wife was extensively cross-examined.  She was represented by Mr Cook of Counsel.

The applicable law

16.This is an application under s.79 of the Family Law Act 1975 which relevantly provides:

Alteration of property interests

(1)  In property settlement proceedings, the court may make such order as it considers appropriate:

(a)  in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

(b)  in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

including:

(c)  an order for a settlement of property in substitution for any interest in the property; and

(d)  an order requiring:

(i)  either or both of the parties to the marriage; or

(ii)  the relevant bankruptcy trustee (if any);

to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

(2)    The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4)    In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)  the matters referred to in subsection 75(2) so far as they are relevant; and

(f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

17.Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:

(2)  The matters to be so taken into account are:

(a)  the age and state of health of each of the parties; and

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

(c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d)  commitments of each of the parties that are necessary to enable the party to support:

(i)  himself or herself; and

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

(e)  the responsibilities of either party to support any other person; and

(f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)  any law of the Commonwealth, of a State or Territory or of another country; or

(ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

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

(g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

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

(ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

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

(k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

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

(m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

(n)  the terms of any order made or proposed to be made under section 79 in relation to:

(i)  the property of the parties; or

(ii)  vested bankruptcy property in relation to a bankrupt party; and

(naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i)  a party to the marriage; or

(ii)  a person who is a party to a de facto relationship with a party to the marriage; or

(iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

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

(p)   the terms of any financial agreement that is binding on the parties to the marriage; and

(q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

18.In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52 which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

a)Identify and value the property, liabilities and financial resources of the parties; and

b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

19.The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.

20.Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step one in Hickey. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully.  In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it.  Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.

Credibility issues

21.The Court had the opportunity to observe both parties in the witness box over an extended period.  Neither could be described as an impressive witness.

22.The Husband was a very poor historian.  He appeared to have extreme difficulties with his memory, at times.  For example, he struggled to recall what he said in his own Affidavit sworn less than a week before the first day of the hearing.  He gave inconsistent answers in cross-examination.  He readily accepted matters put to him in cross-examination that he himself had put in contention, but now agreed to.  His ability to recall dates was highly problematic.  There is often a fine line between not being able to recall facts, and misleading the Court in evidence.  For the most part, particularly in financial evidence, the Court is prepared to accept that the Husband did not set about to mislead the Court but rather, genuinely, had memory difficulties.   The more he was pressed about these issues in cross-examination, the greater his level of frustration, at times.  Even that does not mean he sought to mislead the Court, however.  Where he did seek to mislead the Court, however, is in relation to the cross-examination about the family violence that he clearly perpetrated during the marriage.  As the Wife had abandoned her claim that her contribution was rendered more arduous as a result of the family violence, there was simply no point in the Husband seeking to mislead the Court about the nature and extent of the violence that he perpetrated.  The sole purpose of this cross-examination was as to credit, and it was certainly successful in casting a doubt in the Court’s mind about the extent to which the Husband was prepared to lie, if he thought it served his purposes. 

23.The other concern about the Husband’s evidence is that he had a tendency to make broad, but unsubstantiated statements which, in the hands of a skilful cross-examiner, were very easy to reveal for what they were.  In short, there are doubts about the Husband’s evidence, primarily because he is a poor historian and prone to exaggerate, but also because he selectively demonstrated a willingness to lie.

24.The Court holds similar concerns in relation to the Wife, though not to the same degree.  She was a much better historian compared to the Husband.  She was more reliable when it came to facts and figures.  However, she was prone to exaggerate what she did, whilst minimising what the Husband did, particularly in terms of income earned, and the Property B property.  For example, it did not take long in cross-examination to establish that when the Wife said that the Husband made no contribution to the Property B property, she in fact meant that he made very little contribution to the Property B property, and what contribution he did was together with her.  Even this minimises his role. 

25.In terms of credibility, the nadir of the Wife’s case was in relation to the loan from her mother.  As will be seen when this item is discussed below, a document evidencing the loan was produced which was plainly misleading on its face.  Ironically, the production of the loan document was probably unnecessary in circumstances where the Husband conceded the existence of the $60,000 advance from the Wife’s mother.  When pressed about this issue in cross-examination, the Wife was plainly evasive.  She was prepared to lie about this issue, and that too casts doubt over aspects of her evidence.  

26.Both parties demonstrated themselves to be stubborn and lacked common sense.  There were obvious, sensible concessions to be made in cross-examination that were not made.  The Court is left in no doubt that the history of their relationship, including the violence perpetrated, the final terms of the parenting order, and the fact of the Husband’s significant contribution via his compensation payment has left both of them deeply resentful and lacking in any trust, one for the other.  But for sensible and competent legal representation, the litigation could have been a nightmare.

The balance sheet

27.Despite the Court’s earnest efforts to procure a joint balance sheet from counsel during the course of the hearing, none was forthcoming.  The balance sheet prepared below is a compilation of the balance sheets contended for on behalf of each party, in their written submissions.

ASSETS
Ownership		Description				Value
1	J	Property at Property C				975,000.00
2	W	Property at Property B				720,000.00
3	H	Household contents				5,000.00
4	W	Household contents				7,000.00
5	H	Tools				7,000.00
6	H	Volkswagen (omitted)				35,450.00
7	W	Holden (omitted)				13,300.00
Total		$   1,762,750.00

LIABILITIES
Ownership		Description				Value
8	W	(omitted) Bank mortgage – (omitted) property				324,684.00
9	W	Loan from Ms S				60,000.00
10	W	Loan from Ms S				24,366.00
11	J	Legal fees – Access Law				6,000.00
12	J	(omitted) Pty Ltd				11,693.00
13	H	Loan from Mr R				43,598.00
Total		$    470,341.00

SUPERANNUATION
Member		Name of Fund			Type of Interest		Value
14	H	Combined superannuation ((omitted) Super, (omitted), (omitted) Super)			31,199.00
15	W	Combined superannuation ((omitted) Super, (omitted) Super Fund, (omitted) Super)			83,102.00
Total		$   114,301.00

ADDBACKS
Ownership		Description				Value
16	J	Sale proceeds of caravan				14,500.00
17	H	Monies retained in account (omitted) at separation				170,000.00
18	H	Superannuation withdrawn by Husband at separation				48,000.00
19	H	Transactions involving VW Multivan				70,000
Total		$   302,500.00

NET TOTAL ASSETS (including Superannuation) $        1,709,210.00

28.A number of issues arise from the balance sheet.  There is no dispute about items 1-8 inclusive.

29.The Husband puts in contention item 9, the loan from the Wife’s mother in the sum of $60,000 and item 10, the further loan in the sum of $24,366.  The Court will deal with these in reverse order.  In his written submissions, the Husband appears to concede $14,366 at item 10.  This is a sensible concession, as the evidence does tend to suggest that there was a debt that the Wife incurred in prosecuting the appeal against the decision of the (omitted) in favour of (omitted).  In relation to the balance, however, the Court accepts the Husband’s submission that there is no evidence to support the same, particularly the absence of any evidence from the Wife’s mother herself.  Accordingly, the liability to appear at item 10 will be $14,366. 

30.The liability at item 9 is more problematic.  Throughout the Husband’s evidence he concedes the initial loan of $60,000 from the Wife’s mother to herself for the stated purpose of paying out her former husband’s interest in the Property B property.  It is in his Affidavit.  It is in his Counsel’s case outline filed at the commencement of the proceedings.  Curiously, by the close of the evidence, and written submissions, his contention was that the loan should be disregarded.  On his behalf, it is contended that there is no evidence from the Wife’s mother about the loan, and the purported loan agreement, which became exhibit A5 was highly suspect.  Indeed, it is.  The Wife’s own evidence suggests this is a document which was brought into existence well after the loan was made, probably after separation, and possibly in contemplation of these proceedings.  It contains reference to an interest rate of 5 per cent, an interest arrangement that is not deposed to at all by the Wife in her evidence.  It recites the fact that the Wife has repaid the amount of $20,000 being “part of the interest only”.  The Wife agreed in cross-examination that she did, in fact, pay $20,000. 

31.The issue for the Court is whether such payment was in fact of interest, or was it in fact a principal repayment?  The Wife’s failure to call her mother to give evidence is unexplained.  The Wife’s evidence about payment of alleged interest is unsatisfactory.  Accepting the Wife’s evidence, and her mother’s representation in the document being exhibit A5, the $20,000 has been paid, the most likely scenario is that this represented a repayment of principal rather than of interest.  It is the Husband’s contention that the entire loan should be ignored is equally unacceptable.  It was blatant opportunism on his part. 

32.The fact of the $20,000 repayment to the mother creates another problem for the Wife because, if the Court accepts her evidence, as it does, the issue is what was the source of the payment?  Her evidence is that it came out of a redraw facility on the loan secured over the Property B property.  As she said in cross-examination that it was not paid in a lump sum but in instalments, the last of which was probably more than two years ago she accepted the proposition that in order to redraw from the said loan she had to have been in advance of her payment.  When it was put to her, in effect, that that was plainly implausible without the Husband’s financial assistance in some way, directly or indirectly, she would not make that concession.  Even if the Court accepts the Wife’s evidence that she was in receipt of her own personal income, child support from her first husband, some Centrelink benefits and the rental from the Property B property, it is simply implausible that she could somehow pay all of the mortgage and outgoings in relation to the Property B property, and get ahead on the mortgage, without some assistance direct or indirect from the Husband.  This is a matter that will take on greater significance below.  In any event, the Court finds that item 9 should read $40,000.

33.There was no dispute about items 11 and 12, even though the Husband initially put item 12 in contention, until confronted with a written document, addressed to him, produced by his solicitors, which clearly confirmed the existence of the (omitted) Pty Ltd debt.

34.Item 13, the loan from the Husband’s father, is put in contention by the Wife who asserts it should be disregarded.  The Wife says it should be disregarded, in effect, because there is no loan agreement between the Husband and his father.  However, the fact is that Mr R swore an Affidavit on 20 March 2014, and was not required for cross-examination.   At paragraph 9, he sets out sums that he paid on behalf of the Husband.  It totals $43,598.  However, only $25,000, being a sum paid on 5 September 2013 to settle the (omitted) judgment debt, appears to be directly relevant to the balance sheet issues under consideration. 

35.The impression created from the rest of his evidence is that the father was paying the Husband’s legal fees, including legal fees incurred by the Husband not just for the present proceedings, but for the various criminal proceedings and Apprehended Violence Orders arising out of the Husband’s violence against the Wife. In all the circumstances, the sum of $25,000 should be allowed at item 13, being an amount that the Wife directly benefited from. To the extent that the Husband owes his father anything else, that is a matter for him. The debt will not be disregarded for the purposes of s.75(2) of the Act, but only $25,000 will be recognised on the balance sheet.

36.There is no contention about items 14 and 15.

37.In relation to item 16, the Husband agrees that the caravan was sold for $14,500, but he contends that it should not be added back or taken into account because the monies were simply absorbed back into the pool of assets available to the parties.  The difficulty with accepting the Husband’s contention is that the Wife raises an issue with what the Husband did with substantial cash monies he had available to himself in the post-separation period.  Depending on the Court’s findings about that contention, the sale proceeds of the caravan should, or should not, be taken into account.  Any adjustment will need to be reflected in dealing with item 17, the allegation of the add-back in relation to monies held at separation.  As will be seen below, the sum of $14,500 should be treated as an add-back which was available to the Husband alone.

38.In relation item 17, the Wife says that the sum of $170,000 kept in the account ending in (omitted) at separation should be added back, or taken into account.  This is one of the most difficult issues in this case.  The evidence indicates that at the date of separation at April 2012, the Husband had funds of approximately $170,000 which had been entirely dissipated by March 2014.  The Husband’s case is that he has accounted for all of the money.  At paragraph 23 of the Husband’s Counsel’s written submissions, the following table is set out as a way of summarising his evidence in relation to how the funds were used: 

Transaction	Amount	Balance	Source
Compensation received	$1,550,000	$1,550,000	Aff H Para 42
Less payments & costs	(157,106)	$1,392,894	Aff H Para 42
Medicare refund	$155,000	$1,547,894	Aff H Para 78
Withdrawal (omitted) Super	$50,000	$1,597,894	Aff H Para 79
Repayment of Loan	($9,000)	$1,588,894	Aff H Para 82
Deposit on house	($65,900)	$1,522,994	Aff H Para 81
Balance of purchase price	($591,972)	$931,022	Aff H Para 83
(omitted)	($155,865)	$775,157	Aff H Para 92
(omitted)	($36,293)	$738,864	Aff H Para 96
(omitted)	($25,000)	$713,864	Aff H Para 97
Completion of home	($335,481)	$378,383	Aff H Para 99 Exhibit A1
Transaction costs	($27,887)	$350,496	Paras 84-87
Rent	($21,840)	$328,656	Aff H Para 93
Furniture	($35,000)	$293,656	Paras 94-95
Volkswagen	($48,500)	$245,156	Aff H Para 89
Holden (omitted)	($19,000)	$226,156	Aff H Para 90
Net purchase of Caravan	($2,500)	$223,656	Aff H Para 91
Volkswagen	($21,000)	$202,656	Aff H Para 98
Business costs	($20,000)	$182,656	Aff H Para 88
Living & family expenses	($72,000)	$110,656	Paras 100-101
Rent during construction	($33,600)	$77.056	Paras 45 + 102
Holidays in Queensland	($18,000)	$59,056	Aff H Par 103
Rent of Property T premises	($24,000)	$35,056	Aff H Par 104
Withdrawals by Wife	Not known

39.This table is supported, the Husband contends, not only by his evidence, but by several voluminous exhibits (A1, A2 and A3) which he asserts amounts to a record of his expenditures based on invoices and receipts.  The Wife attacks the veracity of some of this evidence, submitting, for example, that there are numerous handwritten notes of the Husband not supported by receipts.  She also contends that the money that was paid to complete the house after (omitted) completed it to lock-up stage is simply implausible.  In this regard, the Court does not accept the Wife’s contention as to implausibility. 

40.Whilst she had clearly convinced herself of the same, a matter quite evident in cross-examination, the total impression formed from studying the exhibits in question does create the strong impression that a very substantial amount of money was put into completing the Property C property.  The fact that the total amount expended was far greater than what the contracted price was in the first place is by no means determinative.  Both parties recognise that the Court should not be involved in a mathematical exercise in this regard.  Indeed, this would be quite impractical, and disproportionate to the issue at hand.  The Court’s conclusion is based on a study of the exhibits, and an impression formed, rather than detailed calculations undertaken.  Where the Husband asserts, therefore, that he spent $335,481 completing the home, post lock-up stage, he is more likely to be correct, than incorrect. 

41.That does not necessarily resolve the Wife’s contended add-back.  The other expenses alleged on behalf of the Husband, set out in the schedule above, deserve close scrutiny and, as it will be seen, do not survive close scrutiny.  For example, there are real doubts about the amount that the Husband contends was paid for rental, whilst the Property C property was being completed.  Quite apart from the fact that his own evidence about this was inconsistent, he clearly did not account for rental received from the Property C property for a period.  The claim for living and family expenses is very poorly corroborated and ignores the fact that both the Wife and the Husband were earning income at the relevant time. 

42.The claim that he makes for rental, presumably for himself, also ignores the fact that he was earning income.  The holidays in Queensland, are plainly personal expenditure.  The rent of the Property T premises appears to have been duplicated as an expense.  Moreover, in cross-examination, it became quite obvious that the Husband had indulged himself in a somewhat extravagant lifestyle of travel including to (country omitted) and (country omitted), probably in the company of a person who was his partner, even though he would not admit to the same.  But he himself admitted that his hobby of (omitted) was an expensive one.  He also appears to have enjoyed golf, including in some exotic locations.  At the same time, or certainly overlapping during the period in question, the evidence indicates the husband was earning a substantial sum of money through his business, (business omitted).

43.All of these matters lead the Court to accept the Wife’s submission that the Husband has double-counted personal living expenses as an explanation for diminishing the funds held at the date of separation, and monies that he earned in the post-separation period.  Throughout this period, the evidence suggests that the Wife was meeting the costs of the family, her own costs, as well as preserving the former matrimonial home.  The difficulty is how to quantify this expenditure.  The Wife seeks to add-back $170,000 but concedes, at least implicitly, that it is not possible to quantify this.  The Court can only do the best it can. 

44.Whether the Husband intended to or not, by swamping the Court with reams of documents, and asking the Court to, in effect, accept his own analysis of the expenditure, he has put it beyond the Court’s ability to be more precise in establishing what should be added back.  The Court can only do the best it can in these circumstances, whilst maintaining a sense of proportionality about this issue, and this litigation generally.  An add-back is appropriate, but not in the quantum sought by the Wife.  Doing the best the Court can, the add-back will be assessed at $80,000.  There is no double-dipping in this regard, so far as item 16 is concerned.  The schedule provided on behalf of the Husband does not refer to the sale proceeds of the caravan.

45.The Wife further contends for an add-back at item 18, being the superannuation withdrawn by the Husband   The Court is satisfied that it has adequately considered this in the context of item 17 where the Husband plainly discloses, and includes, the superannuation amount in question.

46.Item 19 is a contended add-back in the sum of $70,000 involving the Husband's Volkswagen Multivan.  The Wife’s claim in this regard is most imprecise.  It is common ground that the Multivan was traded in for the Husband’s vehicle noted at item 7.  If that is the case, and that is the contention made on behalf of both the Husband and the Wife, it is hard to see how, in the absence of further evidence, there can be a further add-back.  No allowance will, therefore, be made in relation to contended item 19. 

47.There is one further balance sheet issue that should be mentioned in passing.  Whilst the Wife’s submissions do not contend for the inclusion of a debt to her father of $9,000, her case proceeded on that basis.  However, the Court is satisfied that the Husband’s evidence about the repayment of the loan to the Husband’s father is, in fact, correct and thus there was no place for this liability on the balance sheet.

48.Having regard to the Court’s findings set out above, the final balance sheet for the purposes of the application for alteration of property interests will be as follows:

ASSETS
Ownership		Description				Court’s value
1	J	Property at Property C				975,000.00
2	W	Property at Property B				720,000.00
3	H	Household contents				5,000.00
4	W	Household contents				7,000.00
5	H	Tools				7,000.00
6	H	Volkswagen (omitted)				35,450.00
7	W	Holden (omitted)				13,300.00
Total		$   1,762,750.00

LIABILITIES
Ownership		Description				Court’s value
8	W	(omitted) Bank mortgage – Property B property				324,684.00
9	W	Loan from Ms S				40,000.00
10	W	Loan from Ms S				14,366.00
11	J	Legal fees – Access Law				6,000.00
12	J	(omitted) Pty Ltd				11,693.00
13	H	Loan from Mr R				25,000.00
Total		$    421,743.00

SUPERANNUATION
Member		Name of Fund			Type of Interest		Court’s value
14	H	Combined superannuation ((omitted) Super, (omitted) Super, (omitted) Super)			31,199.00
15	W	Combined superannuation ((omitted) Super, (omitted) Super Fund, (omitted) Super)			83,102.00
Total		$   114,301.00

ADDBACKS
Ownership		Description				Court’s value
16	J	Sale proceeds of caravan				14,500.00
17	H	Monies retained in account (omitted) at separation				80,000.00
Total		$   94,500.00

Net non-superannuation assets	$     1,435,507.00
Net superannuation assets	$        114,301.00

NET TOTAL ASSETS $     1,549,808.00

Assessment of contribution at cohabitation

49.As foreshadowed, whilst it is clear that the Wife made a greater financial contribution at the date of cohabitation there is less certainty as to the extent of this.  She had purchased the property at Property B in 2002 for $470,000.  In 2003 she paid out her former partner, $60,000 which was his agreed share of the equity in the Property B property at the time.  The value of Property B at the time of cohabitation is not known.  It is clear she had equity in the property.  It is also agreed that she had borrowed $60,000 from her mother in order to pay out her former partner.

50.The parties agreed that the Wife had a motor vehicle at cohabitation, as well as some furniture.  Whilst the Husband had a motor vehicle, in cross-examination he conceded that because of amounts owing in respect of it, he had no equity in it.

51.The Husband says he had savings in an amount of $30,000 which, he contends, was applied towards the purchase of the Property A property.  The Wife says he had no savings, indeed he had debts which had to be paid out, using an increase in the mortgage secured over the Property A property, once it had been purchased.  The Court prefers the Wife’s evidence in this regard.  Quite apart from the memory problems tainting the Husband’s evidence, she gives a far more cogent account, particularly as to how Property A was purchased and financed, including the source of the relevant funds.   The Court finds, therefore, that it is more likely than not that the Husband did not having savings at the time of cohabitation but, in fact, had debts which were paid out after the Property A property had been purchased.  What savings the Husband had accumulated after cohabitation were probably put towards the purchase of the Property A property. In reality, not much turns on this.  The Wife’s greater contribution at the commencement of this relationship is plainly manifest in the equity she had in the Property B property, a property she still has equity in today.

Assessing contribution during the relationship and separation

52.Both the Husband and Wife worked for most of the marriage.  For the Wife there was a period coinciding with X’s birth when she was not working.  For the Husband, after he was injured in his workplace, his income decreased because he was only receiving worker’s compensation.  To the extent that it matters, the Husband’s total income during the relationship was probably greater than the Wife’s total income, even taking into account the rental she derived from her property at Property B, of which more will be said presently.

53.Both parties made non-financial contributions, including as homemaker and parent.  After the Husband’s workplace injury he was home more often and therefore able to assist with homemaking and parenting.  Before then, however, the Court is satisfied that she probably did more than him.

54.A specific issue arises about whether, and if so to what extent, the Husband made a contribution towards the Property B property.  The Wife’s case was initially, to completely deny any contribution, financial or otherwise.  As her evidence was progressively tested, however, this changed.  On close examination, there are inconsistencies between paragraphs 31 and 65 of her Affidavit.  For example, at paragraph 31 she deposed that her wages paid the difference between the rental received and the mortgage paid, thus meaning less money was available to meet household and family expenses. 

55.By paragraph 65, however, she deposes that her wages went towards the expenses of the family, whilst the rent from the Property B property went to the Property B mortgage.  The only way to explain the difference is if she is giving evidence about different periods of time.  Indeed, this reflects the reality that, in all likelihood, both her income, and the mortgage repayments, fluctuated from time to time. 

56.The Court has already discussed the implications on this issue, of the finding that the Wife paid to her mother the sum of $20,000 during cohabitation, in repayment of the original loan used to pay out her former husband.  Despite the Wife’s denials, the most likely scenario, the Court finds, is that at various times throughout their relationship, the joint incomes of the Husband and the Wife funded, directly or indirectly, the shortfall between the total expenses relating to the Property B property, and the income derived therefrom.  Moreover, the Wife’s blanket denials of any other contribution made by the Husband was plainly disingenuous.  At paragraph 119 of her Affidavit, for example, she excludes the possibility of the Husband having made any contribution to the property.  In cross-examination, however, she had to concede that he assisted with one thing only, and that was to build a front deck with her.  When pressed that he also removed rubbish, she conceded that they, together, removed rubbish.  This is the classic example of the Wife failing to make sensible concessions that were there to be made.

57.Having regard to the totality of the evidence, it is more likely than not that the Husband did make a contribution, financial and non-financial, direct and indirect, to the conservation and improvement of the Property B property.  The quantification of this is difficult.  The Wife did not ask the Court to adopt an asset-by-asset approach to assessment of contribution, no doubt for tactical purposes, given the enormity of the financial contribution the Husband made via his compensation payment. 

58.In her written submissions, all she sought to do was to emphasise that she had brought the property into the relationship, that the rental on the property largely paid the mortgage, and that her wages were only used as a top-up in the early years before the property became self-sufficient.  Somehow, this contribution will need to be assessed as part of an overall, global process. 

59.The next contentious issue is assessing contribution attributable to the Husband’s compensation payment.  At the hearing, both Counsel conceded that there was no issue about the characterisation of the Husband’s payment, that is the various components making up his claim.  This evidence is set out at paragraph 43 of the Husband’s Affidavit, which is reproduced below:

A	Non economic loss	$179,830
B	Past Economic Loss	$80,000.00
C	Future Economic Loss	$625,414.89
D	Future superannuation loss	Included in future economic loss figure
E	Past O/P’s	$207,756.61
F	Future prosthesis	Cost $91,500 per arm which requires replacement every 7 years Estimate $549,000.00
G	Past and future domestic care Past Equipment $16.47 per week x 944.5 for life expectancy = Services for domestic care, $284.45 per week x 944.5 =	Past = $16,885.87 Equipment = $15,555 Future Domestic Care Services = $268,663
H	Fox v Wood component	$24,093.00

·From the funds the following were also deducted being $2,000.00 for Union Fees.

·Legal Costs of about $55,000.00 including GST.  The cost of Barrister was $7,700.00 and Disbursements of about $5,000.00

·Prosthesis for arm $91,500.00 and socket replacements of $7,000.00

60.Consistent with authorities including Aleksovski (1996) 20 FamLR 894, it needs to be recognised that this is a very significant financial contribution made by the Husband at a relatively late time during a short relationship. The risk of overstating the Husband’s contribution, however, is as real as the risk of understating the Wife’s contribution. Clearly, the largest component of the claim is future economic loss and future expenses. The Husband’s compensation payment is, on any analysis, a very significant contribution made on his behalf. The reality in this case is that items 1, 6 and 7 clearly, item 5 probably, and the add-back at item 17 all have their source from his compensation payment.

Submissions about assessment of contribution

61.Despite all the issues raised by the parties in their litigation, there is perhaps a surprising commonality in the final submissions their respective Counsel made.  This no doubt reflects the good representation they each had, as well as the sensible advice given.  On behalf of the Wife it was submitted that, taking into account all of the matters discussed in relation to contribution, an assessment would still favour the Husband as to 70/30.  On behalf of the Husband, however, it was submitted it ought to be 75/25.  As observed earlier in these reasons, each party invited the Court to adopt a global approach.  Given the enormity of the Husband’s contribution, and the add-backs already reflected in the asset pool, the Court believes that an assessment at 75 per cent is appropriate in reflecting the financial contribution made by the Husband.

An adjustment for future needs?

62.Again, common sense has prevailed here.  The Husband, in his written submissions, concedes there should be an adjustment in the Wife’s favour of between five and ten per cent.  The Wife submits it should be in the order of ten to fifteen per cent.

63.Age of the parties is not a relevant consideration.  Despite the Husband’s workplace injury, he is still able to work and so is the Wife.  On any analysis, both of them will have the income, property and financial resources that will enable them to move on in life.  A major consideration is that the Wife will have the full-time care of their son, X.  There is an order in place for no contact or communication.  He is not providing financial support, but the Wife has not sought a child support assessment for reasons of her own that did not become apparent during the evidence.  The Wife is responsible for the care of two other children whom she has a duty to maintain, but she receives child support. 

64.The Husband contends that throughout the period of the relationship he provided financial support to the Wife’s other children. An overall impression of the evidence suggests this is correct. This is a s.75(2)(o) factor in his favour. True, it is, that he suffers a disability, but his future needs are reflected in his compensation payment and the assessment of contribution that has been made. In any event, he seems to enjoy a healthy income.

65.The Wife’s ability to work is limited by the need to care for the children who, she asserts, have some special health needs. Having regard to all of these factors, the Court assesses s.75(2) considerations as favouring the wife in the sum of 10 per cent.

66.If the Husband’s contribution is assessed at 75 per cent and the Wife’s future needs at 10 per cent, the final outcome would be a 65 per cent division in his favour and 35 per cent division in her favour.

67.On this analysis, the Husband would be entitled to receive 65 per cent of the net total pool of assets of $1,549,728 which is $1,007,323.20.  Conversely the wife would be entitled to receive 35 per cent of the net pool of assets, being an amount of $542,404.80. The following reflects this:

TOTAL NET ASSETS	$1,549,808.00
Husband’s entitlement (65%)	$1,007,375.20
Wife’s entitlement (35%)	$542,432.80

68.In her Amended Response filed 21 March 2014, the Wife seeks an Order for sale of the Property C property.  By contrast, the Husband seeks the opportunity to buy the Wife out and, indeed, his evidence was that he holds a finance approval for up to 15 per cent of the value of Property C property.  Having regard to this, there is a greater prospect of the Husband retaining the Property C property, than the Wife.  Accordingly, the Orders will give the Husband the opportunity to pay to the Wife her entitlement in the Property C property, failing which the property will have to be sold.

69.On this scenario, the following table sets out the assets and liabilities that the Husband would receive, less the payment to the Wife.  The following makes  a number of assumptions, however, including the fact that each party would pay the debts in their personal names, but likewise, each party would pay one half of the joint debts to Access Law and (omitted) Pty Ltd.  Accordingly, the Husband would receive:

ASSETS
Ownership		Description				Court’s value
1	H	Property at Property C				975,000.00
3	H	Household contents				5,000.00
5	H	Tools				7,000.00
6	H	Volkswagen (omitted)				35,450.00
Total		$   1,022,450.00

LIABILITIES
Ownership		Description				Court’s value
11	H	Legal fees – Access Law				3,000.00
12	H	(omitted) Pty Ltd				5,846.50
13	H	Loan from Mr R				25,000.00
Total		$    33,846.50

SUPERANNUATION
Member		Name of Fund			Type of Interest		Court’s value
14	H	Combined superannuation ((omitted) Super, (omitted) Super, (omitted) Super)			31,199.00
Total		$   31,199.00

ADDBACKS
Ownership		Description				Court’s value
16	H	Sale proceeds of caravan				14,500
17	H	Monies retained in account (omitted) at separation				80,000.00
Total		$   94,500.00

Net non-superannuation assets	$     1,083,103.50
Net superannuation assets	$           31,199.00

NET TOTAL ASSETS $     1,114,302.50

70.The Wife would receive the following property:

ASSETS
Ownership		Description				Court’s value
2	W	Property at Property B				720,000.00
4	W	Household contents				7,000.00
7	W	Holden (omitted)				13,300.00
Total		$        740,300.00

LIABILITIES
Ownership		Description				Court’s value
8	W	(omitted) Bank mortgage – Property B property				324,684.00
9	W	Loan from Ms S				40,000.00
10	W	Loan from Ms S				14,366.00
11	W	Legal fees – Access Law				3,000.00
12	W	(omitted) Pty Ltd				5,846.50
Total		$    387,896.50

SUPERANNUATION
Member		Name of Fund			Type of Interest		Court’s value
15	W	Combined superannuation ((omitted) Super, (omitted) Super Fund, (omitted) Super)			83,102.00
Total		$   83,102.00

Net non-superannuation assets	$        352,403.50
Net superannuation assets	$        83,102.00

NET TOTAL ASSETS $        435,505.50

71.Having regard to the calculations as set out above, as the value of the assets the Husband retains ($1,114,302.50) is greater than his entitlement ($1,007,375.20), the difference ($106,927.30) needs to be paid to the Wife. This represents about 11 per cent of the value of the Property C property so, based on the Husband’s own evidence, he should be able to pay out the Wife interest on the said property. The Husband will have 30 days to do so, failing which, the property will need to be sold.

72.Having regard to all of the evidence, the Court is as satisfied as it can be that these Orders are as just and equitable as the facts of this case allows.

73.In terms of Orders sought, the Minute proposed by the Husband approximates more closely to the Orders to be made consistent with these reasons, with obvious adjustments to reflect the details findings made.  As he did not propose a sale of the property, however, the Wife’s Orders will be adopted as the default Order.  Orders will be made to cover the issues raised in the evidence about Council approval of the alterations made, but this will only be relevant should it become necessary to sell the Property C property.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       26 November 2014