Mundy and Mundy
[2009] FMCAfam 968
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUNDY & MUNDY | [2009] FMCAfam 968 |
| FAMILY LAW – Property – undefended. |
| Family Law Act 1975 (Cth), ss.75(2), 79, 79(1), 79(2) & 79(4) |
| Hickey and Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 |
| Applicant: | MS MUNDY |
| Respondent: | MR MUNDY |
| File Number: | ADC 4503 of 2008 |
| Judgment of: | Simpson FM |
| Hearing date: | 10 March 2009 |
| Date of Last Submission: | 10 March 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Ross |
| Solicitors for the Applicant: | Tindall Gask Bentley |
| The Respondent: | No appearance |
ORDERS
Orders 1 and 2 of the Orders made by the Court on 1 December 2008 be dismissed.
In the event that there is at the time of these orders a binding contract for the sale of the former matrimonial home situated at Property D in the State of South Australia (“the Property D property”) and that settlement of the contract takes place, the total nett proceeds of the sale of the Property D property shall be paid to the wife as provided for in order 5 hereof.
In the event that there is at the time of these orders no binding contract for the sale of the Property D property, or, if there is a binding contract but settlement does not take place within such time as the wife may nominate or the Court may further order, ownership of the Property D property shall pass to the applicant wife and it be declared that the respondent husband shall no longer have any further legal or equitable interest therein in which event she shall pay to the husband the sum of $10,000.00 within 7 days of becoming the sole registered proprietor of the Property D property.
To give effect to orders 2 and 3 of these Orders the respondent husband must do all acts and execute all documents submitted by or on behalf of the applicant wife to effect the transfer of his interest in the Property D property to the purchaser of the Property D property or to the applicant wife as the case may be.
In the event that the Property D property is sold as provided for in paragraph 2 of these orders such that the wife never becomes the sole registered proprietor of the Property D property, she shall do all acts and execute all documents to cause the proceeds of the sale of the Property D property to be used as follows:
(a)To pay the reasonable expenses of the sale including agent’s commission and legal costs and disbursements;
(b)To discharge the mortgages secured on the property;
(c)To pay rate adjustments;
(d)To pay the sum of $10,000.00 to the husband; and
(e)To pay the remainder to the wife.
The wife is declared to be solely entitled to the exclusion of the husband to all property and chattels of whatsoever nature and kind in her possession as at the date of these orders including, without limiting the generality of this order, the furniture in her possession and her superannuation.
The husband is declared to be solely entitled to the exclusion of the wife to all property and chattels of whatsoever nature and kind in his possession as at the date of these orders, including, without limiting the generality of this order, the tools retained by him and his superannuation.
There be liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Mundy & Mundy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4503 of 2008
| MS MUNDY |
Applicant
And
| MR MUNDY |
Respondent
REASONS FOR JUDGMENT
Introduction
This was initially an application for parenting and property orders commenced by the wife on 13 November 2008. The wife has indicated that she now only wishes to proceed in relation to property issues.
The wife’s initiating application, supporting affidavit and financial statement were personally served on the respondent husband on 18 November 2008 in New South Wales. The husband has not filed any documents, nor has he sought to participate in the proceedings. The wife filed an amended initiating application on 3 March 2009 but this document has not been served on the husband and is not proceeded with.
On the first return date (1 December 2008) the following orders were made:
1.The applicant wife be authorised to sign all documents and do all acts and things necessary to cause the former matrimonial home Property D to be sold as soon as practicable after the date of order and the net proceeds of sale applied as follows:
a. In discharge of the Adelaide Bank Mortgage and [C] school fees;
b. In payment of the costs of preparation of the former matrimonial home for sale as defined in paragraph 3 hereof and the costs of re-insuring the former matrimonial home;
c. By payment by way of partial distribution of property to the wife of the sum of $100,000; and
d. By investment of the residue of the net proceeds in a joint interest bearing deposit in the name of the husband the wife pending further order of this Honourable Court.
2.The wife be authorised to expend an amount not exceeding $7,000 as recommended by the sale agent for the purposes of presenting the property Property D for sale and from the proceeds of sale any amount so expended together with any amount expended in respect of insurance premiums for the former matrimonial home be reimbursed to the wife.
3.The infant children of the marriage [X] born [in] 1990, [Y] born [in] 1992 and [Z] born [in] 1994 live with the wife.
4.Until further order the husband restrained and an injunction granted restraining him from approaching or communicating with the applicant wife or the said children.
5.The respondent husband file and serve his Response, Answering Affidavit and Form 13 Financial Statement within 14 days of today’s date.
6.Costs of today be reserved.
7.The matter be adjourned to 20 February 2009 at 9:30 am for directions.
The husband failed to comply with Order 5 of those orders.
On 20 February 2009 orders were made listing the matter for trial on an undefended basis on 10 March 2009 and for the filing and service of trial affidavits. The mother’s trial affidavit was filed on 5 March 2009. As the husband failed to appear on 10 March 2009 the trial proceeded on an undefended basis.
The law
The approach to dealing with matters on an undefended basis is the same as for defended matters. Orders of this Court altering the interests of the parties to the marriage in relation to the property of the parties to the marriage are made pursuant to s.79 of the Family Law Act 1975 (Cth) (“the Act”). Ultimately the Court must be satisfied that the order that it makes is just and equitable in all the circumstances.[1]
[1] Subsection 79(2) of the Act.
The Full Court of the Family Court in Hickey and Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 explained a four step process for courts to follow for the resolution of matrimonial property issues. That four step process was succinctly summarised by the Court as follows:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (g) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 922-335; Davut and Raif (1994) FLC 92-503 ; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
Where in these reasons I make a statement of fact it is a finding of fact made on the balance of probabilities after considering the evidence tendered in the applicant’s case.
Evidence relied upon
The wife relied upon her Initiating Application filed on 13 November 2008, her trial affidavit filed on 5 March 2009 and her financial statement filed on 13 November 2008. She gave further evidence orally during which the following documents were tendered:
a)Copy of Information brought by police officer against husband alleging 20 counts of major indictable offences dated 20 November 2008; and
b)Assessment from Child Support Agency dated 20 October 2008.
Background
The wife was 46 years of age at the date of trial, having been born in Adelaide [in] 1962.
After completing secondary school the wife trained and later worked [in the education industry] in South Australia.
The husband was 43 years of age at the date of trial, having been born in Sydney [in] 1965.
The parties met in Sydney and formed a relationship in 1988. At the time the husband was studying at [omitted].
The husband proposed to the wife six weeks after they met, the parties having spent only six days together. The wife accepted his proposal. They married in Adelaide [in] 1988 after which they cohabited, initially in Sydney. They separated on 25 August 2008 after a 20 year marriage.
The parties have three children of the marriage:
a)[X] born [in] 1990;
b)[Y] born [in] 1992; and
c)[Z] born [in] 1994.
At the time of their marriage the husband was working in the [law enforcement industry]. He left the [occupation] soon after marriage and, apart from short periods of employment, remained unemployed until the parties moved to Adelaide to live in early 1991. The child [X] was approximately six weeks old at the time of the move.
During the period referred to in the preceding paragraph the wife obtained work outside of [the education industry] as her remuneration would be better. She worked full time as [in the administration industry]. During this period the wife consistently earned more than the husband.
Whilst in Sydney the parties managed to save $50,000 to $60,000. The majority of the contributions were made by the wife as she earned a good income whereas the husband was often unemployed.
Soon after moving to Adelaide in late 1990 the parties bought their first home for a little over $100,000. The house was in the outer suburbs of Adelaide at [H]. The parties changed their matrimonial home in November 2000 when the [H] property was sold at which time the parties bought a home at Property D.
Upon moving from Sydney to Adelaide the wife did not seek paid work as the parties wished her to be the primary caregiver of the child [X] as well as being the homemaker. The husband obtained work as a [tradesman]. He later operated his own businesses initially selling fireworks (often illegally) and later a pottery business. The wife would regularly assist the husband with book-work and the like. The husband’s businesses were neither profitable nor successful. The husband was often unemployed for significant periods between his business ventures or jobs that he managed to obtain.
The wife returned to [the education industry] in 2000 although she continued to be the primary caregiver and homemaker to the then three children. The husband provided no significant level of assistance even though at the time he had no paid work. The wife’s examination of the home computer at this time indicated that the husband spent much of his day visiting various pornographic web sites.
The wife found the husband’s behaviour frustrating. To encourage (or, perhaps more accurately, to force) the husband to engage in income generating activity the wife resigned from her work. The husband re-engaged in income generating activities but, again, with very limited success. His employment as a [tradesman] came to an end when it was discovered that he was stealing electrical and machinery parts from his employer which he then sold on eBay. He was convicted of theft, ordered to reimburse his former employer and placed on a good behaviour bond.
The wife started [work in the education industry] again in May 2007 doing casual work. Her taxable income for the financial year ending June 2008 was $12,093.00. The wife was offered part-time contract work at [workplace omitted] for two or three days per week [for the latter part] of 2008 but, because of the circumstances of the separation, did not consider herself fit to accept. Between separation and this trial she did not work in the paid workforce.
The wife is registered to undertake [casual] work with an employment agency and eight [workplaces] but has not received any offers of work. She believes that this may be as a consequence of the [workplaces] knowing about the criminal charges against the husband.
At the commencement of their relationship neither party possessed significant assets. In or about 2006 the husband received $10,000.00 for a work personal injury claim which he applied for his personal use. The husband’s violent conduct during the marriage made the wife’s homemaker and parenting contributions considerably more onerous and difficult. She was the one who was primarily responsible for preparing the meals for the household, laundering the clothes, cleaning the home and managing home finances, including the payment of bills when they arose. She was also responsible for taking the children to and from school, and to their extra-curricula activities such as lessons for sport and music.
Shortly before separation, the husband told the wife that he would take over the management of their finances. He said that he would open an account in his own name and tried to insist that the wife’s wages as well as his be paid to this account. The wife refused. The husband often fell into arrears in the payment of household bills. For example, the children’s school fees at [C] School fell into arrears in the sum of $10,200.00. The wife eventually discharged this liability after separation using borrowed money from her parents. The husband also insisted that he would do all the grocery shopping and that the wife would have to cook whatever he purchased. He also constructed a list of rules wherein he stated that the wife had to lose weight. He also declared that he would smoke marijuana and drink alcohol whenever he liked. The wife found the husband very intimidating and felt that she had little say over these matters.
At trial the husband was not working and did not pay child support. The wife initially registered with the Child Support Agency which collected the sum of approximately $11.00 from the husband by way of child support for a fortnight. The wife decided to discontinue collection of child support through the Child Support Agency as she was scared about how the husband would react to the continuation of collections. As the assessment of $11.00 per fortnight was not a significant sum the wife decided to discontinue collections. The husband has not made any voluntary payments of child support since separation.
At the time of the parties separation in August 2008 the husband was working as [occupation omitted]. His net income was about $4,000 to $5,000 per month. He also had use of a company car, unlimited fuel expenses, phone, laptop and internet access. He also received an annual bonus of $5,000 to $6,000 which he applied for his own personal enjoyment.
In August 2008 the husband was arrested and charged with violent and inappropriate conduct towards the wife and children. Throughout most of the marriage the wife had been subjected to domestic violence from the husband. This involved regular physical assaults upon her by the husband as well as the husband’s threatening and overbearing conduct towards the wife. This behaviour included death threats. The husband often became angry at which times he would punch or kick holes in walls and doors, smash picture frames, crockery, furniture and the like. On one occasion when he became angry he threw the child [X], who was then a baby, through the air towards a couch. This was done because the child was crying. Later during the marriage the husband introduced his then young sons to pornographic material and encouraged them to engage in sexualised behaviour. He introduced the child [X], then 12 years of age, to marijuana. The most serious conduct by the husband concerned his behaviour towards the parties’ daughter, [Y]. After the parties separated [Y] disclosed to the wife that from a very young age the husband had been sexually abusing her including having sex with her and that this had taken place over many years. She said that she had been too fearful of the husband to report this earlier. The husband is presently facing numerous serious charges being dealt with by South Australian courts. These charges include numerous counts of sexual intercourse without consent which she alleged to have occurred over many years. At the time of this trial the husband was on bail. He had returned to New South Wales and was residing with his parents. He did not have work in the paid workforce.
The husband’s conduct towards the wife and children has had a severe and ongoing effect on each of them. For some time they will each require ongoing counselling and treatment.
The wife’s treating psychologist, counsellor, treating GP and case manager at Centrelink anticipate that it will take her several years to regain full time employment [in the education industry]. Many people in her local community and at schools where she has worked are aware of the charges against the husband and the husband’s conduct. The wife does not feel that she could work [in the education industry] again in the local area due to the gossip and knowledge within the local community of the events which took place in her household.
The wife’s income is presently approximately $492.00 per fortnight. She receives the Newstart Allowance and is currently certified as exempt from looking for paid employment. She is entitled to renew this exemption every three months since Centrelink have stated that she is unfit for paid work for at least the next one or two years.
The wife and each of the children receive counselling. The Medicare scheme has enabled each of them to receive counselling on a monthly basis. If they were to undertake counselling more regularly than this it would have to be at their own expense. Due to the wife’s limited income she does not have the means to pay for the recommended additional counselling.
At the time of separation all of the children attended [C] School. The eldest child [X] has now graduated from school so only [Y] and [Z] remain at the College. [Y] is currently in year level 11 and [Z] is in year level 9. As mentioned previously school fees of approximately $10,286.00 had accrued in 2008 but are now paid. The anticipated school fees for them in 2009 is $20,000.00. This includes school excursions, camps and [Y]’s proposed school trip to Japan. This does not include stationery and school uniforms which will be an additional expense. Given the trauma which the children have experienced in recent times, the wife sensibly would like them to complete their secondary education at [C] School where they have the support of their friends and teachers.
[X] has commenced a Bachelor of Science at University. He hopes to transfer to medicine in 2010 as a Graduate Entry Course student.
There will be ongoing school fees for the two younger children which the wife will not be able to meet from her present income. There are also a number of other expenses for the children which the wife will be required to meet as all of the children reside with and are dependant on her. These expenses include:
a)Weekly piano lessons for [Y] at $25.00 per week;
b)Weekly violin lessons for [Y] at $60.00 per week;
c)Weekly drum lessons for [Z] at $25.00 per week;
d)Weekly guitar lessons for [Z] at $25.00 per week;
e)All three children require braces for their teeth which will cost approximately $16,500.00. There will be additional expense for [Y] as her braces will need to be in place longer and will require some teeth extraction;
f)University books for [X] average $800.00 per semester;
g)The purchase of a new home computer will cost $1,000.00. This purchase has become necessary as the police have taken the computer used by the husband as part of the evidence in the criminal proceedings against the husband;
h)School uniforms, stationery and text books for [Y] and [Z] will cost $1,000.00 each per annum for the remainder of their schooling; and
i)[Y] and [Z] have both expressed an interest in tertiary studies. There will be costs for stationery, text books and course materials for both children when they are at University.
Between separation and the end of 2008, the wife not only maintained the children’s music tuition, but also paid for [X]’s school tutoring. These expenses were as follows :
a)Weekly Maths tutoring at $55.00 per week;
b)Weekly Chemistry tutoring at $55.00 per week;
c)Weekly Physics tutoring at $55.00 per week;
d)Maths revision holiday program at $175.00; and
e)Physics revision holiday program at $175.00.
[Y] has an interest in music as a career. To enter the Conservatorium she must be fluent in two instruments. She therefore undertakes weekly piano lessons at a cost of $25.00 per week (which the maternal grandmother pays for and which the wife will ultimately reimburse) and violin lessons at a cost of $60.00 per week. [Y]’s violin tutor has said that she needs a new violin in order to properly progress her musical talents. A conservative estimate for a second hand violin of the appropriate standard would be $10,000.00.
During the final years of the marriage the wife sold a number of personal belongings on eBay including antiques and stamps which she brought into the marriage or was gifted to her during the marriage. The proceeds of these sales totalled over $25,000.00 over three years. The wife applied these proceeds towards the children’s extra curricula expenses and clothing.
During the relationship the child [Z] was learning two musical instruments. Due to the financial limitations in the household, the wife discontinued lessons for one of these instruments.
The child [X] had earlier been diagnosed with severe depression. Since attending university he is coping better. He is also presently having driving lessons at a cost of $55.00 per lesson. At time of trial he had had 14 lessons, and required another six or so. [Y] would also like to start driving lessons in the near future. [Z] will similarly require driving lessons in 2 to 3 years.
Step one
On the basis of the material before me I find that the asset pool comprises:
Assets:
Property D $450,000.00
Furniture $5,000.00
Tools retained by husband $15,000.00
Total assets $470,000.00
Liabilities:
Liability on Adelaide Bank mortgage ($193,171.00)
Sale costs (including mortgage discharge
costs, bank fees, agents fees) ($20,000.00)
Cost of preparing house for sale
(as per order of 1 December 2008) ($7,000.00)
[C] School fees for 2008 ($10,200.00)
Wife’s parents loan for [X]’s
UMAT fees ($2,000.00)
Sundry household accounts ($4,962.28)
Total liabilities ($237,333.28)
Total assets less liabilities $232,666.72
Superannuation:
Husband’s superannuation (estimate) $25,000.00
Wife’s superannuation (estimate) $5,000.00
Total Pool $262.666.72
Step two
In determining the contributions of the parties s.79(4) of the Act provides as follows:
79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, 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 partiers to the marriage or either of them;
(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;
(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.
I take into account the contribution factors referred to earlier in these reasons. Clearly neither the financial nor non-financial contributions are equal. The wife has made by far the greater financial contribution: She has obtained regular, profitable gainful employment to obtain income to support the family and has assisted the husband in his various businesses.
In relation to non-financial contributions the wife’s contribution has been by far the greater. She has been, and continues to be, the primary carer of the children and the homemaker. She has been the principal one who has discharged household duties and tasks.
She has had to endure the husband’s domestic violence and abuse of her and deal with the consequences that it inevitably will have had on each of the children. She now has to deal with the mammoth task of the consequences to herself and the children of the husband’s violence towards the children.
I would assess the applicant’s contribution at 65% and 35% to the respondent.
Step three
Section 79(4) lists a number of factors to be considered that relate to the future:
(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.
I do not see that the orders that I propose to make will have any affect upon the earning capacity of either party.
Section 75(2) provides as follows:
(a) the age and state of health of each of the parties;
(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;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(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;
(e)the responsibilities of either party to support any other person;
(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;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(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 to 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;
(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;
(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;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(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;
(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.
The findings made earlier in these reasons address the issues to be dealt with so far as they are relevant under this head. It is clear from the findings that pursuant to s.79(4) of the Act, the wife is entitled to a significant adjustment to the contributions that I have previously found appropriate on the basis of contributions. The wife has the day to day care and expense of the two infant children as well as an adult child still a student. She receives no child support from the husband and is unlikely to in the future bearing in mind the fact that the husband faces numerous criminal charges that might result in a lengthy gaol term. Even if he is not convicted his work history is such that I can not be confident that he will have the ability to make any significant contribution to the support of the infant children.
In addition to the significant expense involved in caring for the student children the wife will have the additional financial burden of the cost involved in her and the children having appropriate counselling resulting from the husband’s behaviour to each of them.
I find that an adjustment of 20% in favour of the wife is appropriate having regard to all of the relevant factors.
Conclusion
A division of 85/15% in favour of the wife is indicated by the above findings. She is therefore entitled to $223,266.72 and the husband $39,400.00. I find that the husband should retain his superannuation and his tools already in his possession. In addition, bearing in mind the uncertainty of the true value of these items, I consider it appropriate that he receive an amount of $10,000.00 from the wife. He will have no continuing liability in relation to jointly held debts including the debt secured by the Adelaide Bank mortgage currently on the former matrimonial home.
The wife will retain the house or the proceeds of the sale of the house if sold. She will be solely responsible for any other jointly held debts. She will also retain the furniture and her superannuation.
Just and equitable
I must consider whether the affect of the findings and determinations in relation to the three step process that these reasons have addressed and ask myself whether in all the circumstances the orders that I propose are just and equitable to both parties. The case involves a small pool. The only asset of any significance is the former matrimonial home which had equity at date of trial of $256,829.00. There is uncertainty about what the house might be sold for. As mentioned previously, there is also uncertainty about the true value of some of the assets including the husband’s superannuation and tools. The differential between the overall entitlements is $163,866.72. I am satisfied that the proposed orders are just and equitable to both parties.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: J. Semler
Date: 15 September 2009
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