Newton and Macon

[2018] FCCA 133

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWTON & MACON [2018] FCCA 133

Catchwords:
FAMILY LAW – Property dispute – 20 year relationship – both parties seeking 60/40 division in their favour – husband’s earning capacity far greater than that of the wife – wife’s health uncertain – orders made for division 60/40 in favour of wife.

Stanford & Stanford (2012) 247 CLR 108

Applicant: MS NEWTON

Respondent: MR MACON

File Number: MLC 3152 of 2017

Judgment of: Judge Burchardt

Hearing date: 20 December 2017

Date of Last Submission: 20 December 2017

Delivered at: Melbourne

Delivered on: 23 January 2018

REPRESENTATION

Counsel for the Applicant: Ms Newton, In Person

Counsel for the Respondent: Mr Marchetti

Solicitors for the Respondent: Kennedy Guy

ORDERS

1. Upon completion of the sale of Property A (“the real property”), the proceeds of sale be paid as follows:-

   (a)Firstly, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge the mortgage to (bank omitted) encumbering the real property;

   (c)Thirdly, to the Respondent in the sum of $13,259 for reimbursement of post-separation expenses paid by the Respondent;  and

   (d)Fourthly, the balance to be divided sixty percent (60%) to the Applicant and forty percent (40%) to the Respondent.

2. From the Applicant’s share of the sale proceeds of the real property, the Applicant discharge the (bank omitted) liability in respect to the 2014 (omitted) motor vehicle, and within 14 days of discharging the loan, the Respondent Husband shall do all acts and things and sign all documents necessary to transfer to the Applicant at her expense the (omitted) motor vehicle.

3. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Respondent);

   (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears, and any joint bank account balance be equally shared between the parties;

   (c)All insurance policies are to become the sole property of the owner named thereon; and

   (d)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.

Superannuation

1. In relation to the Respondent’s superannuation interest in (omitted) Superannuation Fund (“the fund”):

   (a)There be an allocation for the purposes of section 90MT(4) of the Family Law Act 1975 (“the Act”), a base amount of $170,210.22 to the Applicant form the Respondent’s interest in the fund.

   (b)Pursuant to section 90MT(1)(a) of the Act, the Applicant is entitled to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount set out in clause 1(a)(i) above, and there shall be a corresponding reduction in the entitlement the Respondent would have had in the fund but for these orders.

   (c)The operative time for this payment split is the beginning of the fourth business days after the date of service of the court order on the trustee of the fund.

   (d)Having been accorded procedural fairness, this superannuation order binds the trustee of the fund.

   (e)The Applicant shall request the trustee of the fund to roll over to a superannuation fund of her choice.

2. Until such time as the superannuation split to the Applicant pursuant to these Court orders can be rolled over into a separate account to the Applicant’s nominated superannuation fund:

   (a)The Respondent will give to the Applicant written notice not less than 28 days before such time as he elect to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part their entitlement in the fund.

   (b)The Respondent will direct and authorise the trustee of the fund to communicate with the Applicant and/or any person authorised by them in writing:

   (i)To answer any reasonable inquiries as may be made by them or on their behalf from time to time regarding their entitlement in the fund; and

   (ii)To give to the Applicant and/or their authorised representative a copy of any notice of any applications or request by the Respondent which seeks release of entitlements in the fund in so far as that release may effect the Respondent’s entitlement in the fund pursuant to this order.

   (c)The Respondent, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Applicant, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to this order.

3. In the event that either party refuses or neglects to execute any deed or instrument, a Registrar of the Federal Circuit Court be appointed, pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument; AND

   (a)The party in default is ordered to pay any and all foreseeable damages to the other party caused by their default; and

   (b)The party in default is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and proving their damages.

4. It shall be sufficient authority for a Registrar to act pursuant to paragraph (6) hereof to have before him or her an affidavit sown by the solicitor for the non-defaulting party deposing:

   (a)That a specified document was sent to the other party for execution on a specified date; and

   (b)That the document has not been returned, signed by the other party (and where necessary witnessed) within ten days of its posting.

5. In the event either party is ordered to pay damages or costs pursuant to paragraph (6) hereof, such costs shall be paid from the sum otherwise due to the defaulting party pursuant to Order 1(d) hereof.

6. Such further or other Orders as may be deemed appropriate in the circumstances.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3152 of 2017

MS NEWTON

Applicant

And

MR MACON

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute involving an obvious and very intense bitterness between the parties.  Apart from superannuation, which the parties agree should be equalised between them, the substantial asset of the parties is the former matrimonial home, which is in the process of being sold.  There are a number of intense disputes about various chattels with which I shall deal, but essentially each party desires that they obtain 60 per cent of the net proceeds of the sale of the matrimonial home and that the other obtain 40 per cent.  For the reasons that follow, I will order that the wife receive 60 per cent and the husband 40 per cent. 

Agreed or Undisputed Facts

1. The bulk of the parties’ materials filed from time to time are concerned with the chattels to which I have already referred.  The wife has been self-represented and this, without in any way being critical, has manifested itself in somewhat unstructured affidavits.  From the husband’s affidavit filed 26 July 2017, the following narrative appears to emerge.  The husband was born on (omitted) 1969 and the wife on (omitted) 1963.  They commenced cohabitation in February 1995, and they separated on 24 November 2015.  I note from an annexure to the wife’s affidavit filed 1 November 2017 that she did not in fact achieve final property settlement with her former partner until 10 February 1997.

2. The child of the relationship, [X], was born on (omitted) 1997.  Following separation when the wife moved out, the wife has moved back in on one occasion and [X] has lived with one or other parent as the case may be from time to time.  This is relevant insofar as the husband asserts that when the wife left in April 2016 she left him with $19,000 of bills to pay.

3. The husband is employed by (employer omitted) as (occupation omitted).  His salary is a base of $180,000 and he receives a bonus.  In February 2017 this was a bonus of $12,000.  A caravan formerly owned by the parties has been sold for $18,000 following what, as I recall it, was something of a filibuster by the husband. 

4. The wife presently earns approximately $65,000 per year and has expressed an intention to retrain as a (occupation omitted).  The upgrade in her qualification is then likely to increase her salary by some $25,000 per annum.   

5. [X] is presently living with her father and is a student. 

The Affidavit Materials of the Parties

1. What follows is obviously a paraphrase of those aspects of the parties’ materials that struck me as being of particular relevance. 

2. In her first affidavit filed 3 April 2017 the mother detailed her final departure from the matrimonial home on 9 September 2016.  She gave details of an Intervention Order taken out against her by the husband.  She set out the history of the relationship including the husband’s very frequent absences for overseas travel on account of his work.  She deposed that she had lost her qualification as a (occupation omitted) as a result of her role as a home maker. 

3. She deposed that when the relationship commenced in 1996 she was a (occupation omitted) earning in excess of $100,000 a year.  She deposed that she had contributed $33,000 in cash at the commencement of the relationship and also had chattels of her own at that time.  The $33,000 paid the parties’ rent until they bought their first home in Sunbury in 2008.  She also deposed as to a $10,000 insurance claim from the death of her father which was used to pay stamp duty on the property at Property A.  She deposed that the husband was reckless with money and spent far too much on cars. 

4. The husband did not file an affidavit with his response.  However, he sought a 60/40 property division in his favour and that the wife take over payments on a leased (omitted vehicle) in her possession. 

5. The wife filed a further affidavit on 8 June 2017.  This traversed issues to do with her daughter, [C], by an earlier relationship and noted that she had worked full time until 30 June 1997.  She detailed the properties that the parties had bought and sold and deposed that the land at Property A (the matrimonial home) had been bought outright unencumbered.  She deposed that the build had cost $300,000 and noted a claim lodged by the husband on her behalf about a fall. 

6. The respondent’s husband’s affidavit on 26 July 2017 has been largely traversed in the agreed matters or undisputed matters above.  In addition, he deposed that [X] had been living with him since March 2017.  He also deposed to paying the mortgage and associated household bills in the sum of $1300 per fortnight following separation. 

7. The husband deposed to having an interest in a business which he sold in 2003 for $200,000, of which $90,000 was allocated to his superannuation fund and $110,000 to reduce the mortgage on the parties’ then home at (location omitted).  The husband deposed that in September 2007 he had inherited $156,000 from his father’s estate.  He deposed that with an additional $78,000 paid to him by his brother Mr A in October 2007 his total inheritance was $234,000. 

8. The parties bought the land at Property A in February 2006 for $142,000 and he deposed that they moved into the home in about mid-2007.  Of his inherited money he applied $30,000 to restore a (vehicle omitted) and spent $3,500 on a (omitted) watch.  He also applied $52,000 of the inheritance to install a pool at the matrimonial home and the balance was deposed to having been applied to reduce the mortgage in a total of about $148,000. 

9. The husband went on to depose to the purchase of the (omitted) car in May 2014 and the monthly payments that he had made upon the car. 

10. He also deposed to [X] inheriting $82,000 from her grandfather in March 2017.  A (vehicle omitted) (which occupied some of the Court’s time) was bought in 2015 and sold for $11,200 in June 2017.  The resultant funds were set aside to meet the payments on the lease of the (omitted), save for $6,000 which was loaned to [X].

11. The husband went on to depose to various collectables, which he described as “various (omitted) memorabilia”.  He also deposed to jewellery valued in a total of approximately $21,500.

12. On 18 September 2017, the husband filed a further affidavit.  It largely recapitulated earlier materials.  He now put the total amounts from his father’s estate as $208,000 which he said were used for the construction of the matrimonial home and applied to the mortgage.  He noted the sale of the caravan for $18,512 and the purchase by himself of a new car.

13. He itemised costs associated with preparing the matrimonial home of the sale in a total of $7500.

14. It should be noted the general tenor of the affidavit, as with those of the wife filed from time to time, is carping and critical in its tone.

15. An affidavit of Mr M filed 19 September 2017 valued the jewellery retained by the wife at a total of about $6200.

16. Further affidavits were filed by the wife from Ms C, Ms M and Ms W.  None of these witnesses were required for cross-examination and their evidence is, in my view, immaterial.

17. The wife filed a trial affidavit on 6 November 2017.  Some of the material contained in it is either irrelevant or otherwise inadmissible as hearsay.  This latter objection applies most particularly to a purported valuation of the memorabilia in the husband’s possession.

18. The affidavit is extensive and I have had regard to all of its terms.  I note that the affidavit at paragraph 23 condescends to very considerable detail as to chattels allegedly retained by the husband but not properly disclosed.

19. I note that by orders made on 10 February 1997 the wife’s former partner was ordered to pay her some $30,500.

20. I also note an email from the husband to the wife at page 98 of the affidavit which, relevantly, indicates that when he returned to their home on 18 April 2016, there was a total allegedly of some $4,554 in bills in a pile in the kitchen.

21. I note that an affidavit of a Mr K, who is a properly qualified expert, valued the collection of petroleum memorabilia at $29,330, but it should also be noted that this includes a (omitted) ute valued at $10,000.

22. The husband’s final affidavit notes that the matrimonial home has been sold, with settlement due to take place on 18 January 2018 and that the likely net proceeds of sale will be some $526,641.

The Submissions Made and the Evidence Given at Court

1. What follows is taken from my notes.  Self-evidently, it is not a transcript that records those aspect of the matter that I considered significant.

The Opening by the Wife

1. The wife asked the Court to consider the sacrifice she had made in her earning capacity.  The orders proposed by the husband did not consider her future needs.  She would be in hardship for the rest of her life if they were made.  She has recently enrolled in university.  She acknowledged the inheritance of the father in 2007 but said this had been eroded.  She complained of non-disclosure on the father’s part.  She said not only were the assets in dispute but it was the existence of assets that was in dispute.

2. The mother asked that the $36,500 she contributed at the start be considered.  She also had a vehicle and household goods.  Her money was used to buy the family home.  At separation, she underwent major surgery and became immobile.  She remained in the family home.  Bills were outstanding, but she had not run them up.  The husband makes far more money than she does.  She has taken out medical insurance and will need more surgery.  She now has an ongoing position as a (occupation omitted) but needs to undertake 18 months study.  The first semester will be six months part-time, and then it will be two full-time.  On conclusion of the course, her wages are likely to go up by $25,000 per annum.  She was seeking 60 per cent of the pool.  Contributions were equal, but there was a disparity in income and lifestyle.  She considered debts at separation as joint debts.

3. She said that the husband was financially reckless before and after separation.  She was seeking spousal maintenance.  Her application to enrol at (omitted) University had been successful and the course, for 18 months, would commence in March 2018.  She requested a superannuation equalisation.  She established the cost of her course at $30,000 and wanted her course fees paid and a contribution in respect of the diminution in her income when she was not working.

   The wife said that the (vehicle omitted) had been gifted to their daughter.  It had been a 20-year relationship.

The Mother’s Evidence

1. The mother adopted her affidavit as true and correct.

2. The mother said the relationship started in 1996 at which time [C] was about 12 years old.  At that time, she had a job paying $100,000 in present-day terms.  It was actually $70,000 at the time.  At that time, she was involved as a (occupation omitted) but is now a (occupation omitted).  The settlement of the home is due in a few weeks.  The land had been bought in 2006, and then they engaged builders.  The husband’s inheritance was in 2007.  She did not accept that the $15,000 was from the grandfather.  She accepted that the $121,072 were ultimately from the estate. 

3. When it was put to her that $30,000 had been spent on the ute, she said it might have been more.  She agreed that the swimming pool had cost $52,000.  She denied that the inheritance was applied to construction costs.  She did not know if the husband’s watch had cost $3,500.  The wife accepted that some funds had been applied to construction.  She said her funds were not spent on lawyers and she had very good income.  She said that all things considered, contributions were equal.

4. The wife accepted that the net settlement terms of the matrimonial home were $526,000 and that the husband’s car had been bought for about $51,000.  She was unable to say whether the (omitted) ute was worth $10,000.  She had no valuation for it.

5. The wife accepted that the husband’s memorabilia had been valued at $19,300, but said that this was only 50 per cent of what was there.  She was adamant that a number of items were missing.

6. The wife said she provided a valuation of her (omitted) car.  She had retained the $18,500 from the sale of the caravan.  Although her rings were valued in excess of $6,000, she said these would sell for far less.  She did not have the so-called heirloom rings and did not know where they were.  She did not accept the car loan of $46,000 as she had never seen anything.  She had never seen credit card documents.

7. She accepted that the husband paid $1,500 - $1,600 for the mortgage per fortnight.  He then moved back in to the house.  She denied that there were $19,000 worth of bills when he moved back in.  She referred to the email at page 98 of her affidavit to which I have referred.  She said it would be impossible to have debts of $19,000.  She had stopped making payments on the (omitted) because she had no capacity to pay it.  She needed the car to earn a wage.  She had given clear notice when she ceased payment.  The wife said that the (omitted vehicle) funds had been applied to pay for the husband’s own car and that [X] should have those funds.

8. The mother conceded that her intention to study was not in her affidavit.  She said she would always to study to earn more.  She had made no arrangements to pay for her study.  Her wages would reduce during study and estimated the loss at $30,000.  Fees are $16,500 plus $2,000 initial payment. It would either be a HECS debt or paid up front.

1. The wife’s current earnings are $2,500 per fortnight and she pays $400 per week in rent.  She has good communications with her daughter who is now living with the father.

2. The $18,000 from the caravan was paid into her bank account and had been used for bills and credit cards.  She still owes about $7,500 on her (omitted) credit card, $5,000 on (omitted) and $8,000 on (omitted) visa.  She has no other bank accounts. 

3. In re-examination, the wife confirmed that the build was finished before the husband received his inheritance. 

4. As I earlier indicated, Ms W, Ms T and Ms C were not required for cross-examination.

The Evidence of [X]

1. [X] was called.  She indicated that when she and the mother left the matrimonial home, they took two couches, a TV stand, a bed, armchairs, a desk, a chest of drawers and a couple of metal things.  Most of the furniture was left in the matrimonial home. 

2. The (omitted vehicle) was not registered in her name, but her father’s. She did not know why.  The (omitted vehicle) was sold and she agreed with her father that he would keep the money to pay off the (omitted).  She had received about $2,000 from the sale.  She did not know where the inheritance rings were.  They are kept in her bedroom.  Some of the furniture in the former matrimonial home has been sold to pay bills, but the (omitted) is still there.

The Opening of Counsel for the Father

1. Counsel conceded that this was a long marriage and that separation had taken place in November 2015.  So far as contributions were concerned, the wife had put in $30,500 and the husband had put in a far more substantial inheritance.  There should be a 60/40 analysis of the contributions.  Otherwise, the parties are in good health and the equity in the matrimonial home should be divided less the costs of the preparation for sale.  Superannuation should be split to equalise it and this was the husband’s proposal, notwithstanding his post-separation superannuation contributions.

The Evidence of the Husband

1. The husband adopted his affidavits and Financial Statement as true and correct.  He confirmed in evidence-in-chief that the home has now sold for $877,500 and will settle on 18 January 2018. 

2. Under cross-examination by the wife, the father said he had sold some of the contents of the home for $970.  Some contents remain.  There is a fridge, three beds, a TV and a couch.  The valuation by Mr K of the memorabilia have been undertaken with the wife not present.  Mr K had full access to the house and there were no items missing.  The contents of the garage were the husband’s and his watch had not been valued.  His previous car had been paid by salary sacrifice, but the new one was not.  What [X] had said was correct.

3. The husband said that the wife’s childhood photographs had not been withheld.  It should be noted that following some discussion with the Court, it became apparent that the husband still has in his possession a number of items that are agreed to be the property of the wife.  The parties have exchanged a list of such chattels and it is to be anticipated that they will have been returned to the wife by the time this judgment is handed down.

4. The husband said he had spent about $9,200 getting the property ready for sale.  The figure was in his affidavit.  He had not obtained the wife’s agreement to spend those sums. 

5. The husband conceded that he was aware of the wife’s ongoing difficulties with mobility.  He also conceded that he had travelled approximately 70 per cent of the time when he was working.  He denied that this inhibited the wife’s earning capacity.  He said that [X] was of high school age at the time.  He conceded there was a significant difference between the parties’ earning capacity.  He denied the wife bringing cash into the relationship.  He said he still could not remember her bringing any cash into the relationship.

6. In re-examination, the husband confirmed that he used to own a (vehicle omitted) which was paid by salary sacrifice.  He stopped this when he sold it in October 2017.  The moneys expended in getting the house ready for sale were spent in painting, oiling the timbers on the deck and furniture for staging the house.

The Final Submissions of the Parties

1. Counsel for the father structured his submissions essentially to explain a document he passed up which set out the orders sought by the respondent.  From the submissions, I would note the following.

2. First, counsel pointed to the husband’s personal loan.  The husband is seeking reimbursement of fees paid for caravan storage in the sum of $1,378 (2016) and $4,018 (2017).  He also seeks reimbursement in relation to his payments for the wife’s (omitted) in the asserted sum of $10,000.  He likewise seeks $7,863 expenses of sale of the matrimonial home.  In total, he was seeking a sum of $24,000.

3. Counsel submitted that a global approach was appropriate.  He pointed to the greater contribution made by the husband.  He submitted that an adjustment of some seven and a half to eight per cent for the wife’s future needs would produce a total of 60/40 in his client’s favour.  He noted that the husband had not been challenged on his assertions about the caravan and (omitted) expenses.

4. Counsel noted that procedural fairness had already been provided in relation to the proposed superannuation split.  He submitted there was no evidence the mother will, in fact, study, but if she does, her earnings will be substantially increased.  He submitted there was no basis for spousal maintenance.

The Submissions of the Wife

1. The wife agreed to a superannuation split.  She pointed to her limited earning capacity.  She was a parent for most of the relationship.  There was a $322,000 mortgage despite the husband’s inheritance and most of that inheritance was recklessly eroded over time.  She is 54 years old and earns $60,000 at the moment.  She has disputed what was valued by Mr K because things were withheld and there had been deception.  Her maximum possible wage was $90,000.  The husband earns $200,000 because of her sacrifice.

2. The sale of the (omitted vehicle) funds were not used to her benefit.  She sought that credit card debts at separation be joint, but there is no proof that she had run up debts in the husband’s name.  The caravan had been sold at an undervalue because of the husband’s obstruction.  $9000 for preparing the house for sale was too much especially since it was done without any communication with her.

Stanford & Stanford (2012) 247 CLR 108

1. The Court’s first task is to assess the parties’ legal and equitable interests and determine whether a property settlement is appropriate.  In this case, both sides would seek one.  The basis upon which they conducted their financial affairs during the marriage has radically changed and it is plainly just and equitable that there be an adjustment. 

The Pool

1. The matrimonial pool consists of:

   a)Assets:

   i)Net proceeds of sale of matrimonial home - $526,641;

   ii)Net proceed of sale of caravan – $18,500;

   iii)The husband’s  (omitted) utility vehicle - $10,000;

   iv)(omitted) memorabilia – $19,330.

   b)Liabilities:

   i)Post-separation rental for caravan – $5,300; 

   ii)Post-separation payments for (omitted) - $10,000;  

   iii)The expenses in preparing property for sale – $7,863.

2. From the above, it will be obvious that I have excised a number of matters from the pool with which the parties were concerned.  In truth, both parties have cars with little (and approximately equal) equity in them.  It is clear that were these vehicles to be sold, they would be likely to have negative equity.  The wife will have to take full possession of her own vehicle and she will have to pay out the lease.  There is no other practical outcome.

3. I have not included any additional amount for the husband’s memorabilia.  Mr K was not the subject of cross-examination.  I accept the husband’s evidence, having heard him give it and seeing him give it, that Mr K had full access to everything there was.  The wife’s dark suspicions are nothing more than that.

4. I have in the main decided to excise the parties’ credit card debts from the pool.  Although the wife said more than once that she wanted credit card debt as at separation to be joint debts, she has not pointed me to any evidence as to exactly how much these sums were.  It is in no wise clear to me what extent the credit card debts she now has involved post-separation living expenses, as seems to me as a matter of general observation to be more probable than otherwise, or not.  It is not for the Court to fossick through the parties’ affidavits seeking desperately to find exactly what figures the parties refer to.  It is for the wife to make out her case and in my view she has not done so.  I make this comment even though I bear in mind that she is self-represented.  It still remains for her to make her case.

5. So far as the husband’s credit card debt is concerned I am prepared to accept that he contributed the rental of the caravan property until it was sold.  He should receive credit for this.  His evidence as to his contributions to the (omitted) was also unchallenged and he should receive credit in the rounded-off figure of $10,000 for that.  The expenses for sale of the house are, in my view, reasonable and not the subject of serious challenge. All these sums should be paid out of the proceeds of the sale of the matrimonial home, less the offsetting $10,000 value of the husband’s ute.

6. The husband’s memorabilia are worth almost the same as the $18,500 that the wife received for the caravan and the two figures effectively cancel each other out.  

7. The wife’s gold rings may have been valued unobjectionably at in excess of $6,000, but I accept the wife’s evidence that on-sale price would be likely be far less.  Furthermore, these were matters given to her during the relationship in a sense very much as a personal property.  To require them to be included as an asset shows a smallness of mind and meanness of spirit on the husband’s part.  In my view it is not just and equitable that they be included.

8. The parties’ superannuation is uncontroversial and there will be a superannuation split as they desire. 

The Contribution Issues

1. It is clear that the wife contributed in excess of $30,000 at the start of the relationship.  It was the only capital sum the parties then had.  She also contributed a further $10,000 from the insurance claim in respect of her father.  These funds, it should be noted, were all accessed early in the relationship.  Although the husband refused to admit it, as being part of the meanness of spirit shown by both these litigants, it is clear from the Court orders to which I have referred that the wife received some $30,000 or more from her former partner in 2007, the springboard for the purchase of their first home.  Arithmetical calculations are not possible but it is reasonable to assume that this is what got the parties started, so to speak, even though it took place a very long time ago.

2. The husband’s inheritance is not quite as he put it.  Exhibit R1 shows payments of $15,000 on 13 August 2007, $121,000 on 22 August 2007 and a further $72,000 on 17 September 2007.  In total they amount to about $208,000.  It is clear from exhibit R2 that $15,000 was indeed paid on 13 August and that ultimately the husband got $156,000 less the $35,000 already advanced to him which equates exactly with the $121,000 figure (to the cent) on 24 August. 

3. Thus, for what it is worth, of the $208,000 inherited, if one subtracts the $30,000 spent on the ute and the $52,000 spent on the pool, the rough total contributed towards the matrimonial home was about $126,000. 

4. The wife was adamant that the parties had already moved into the home by the time the inheritance was received.  The husband has deposed in a later affidavit that they moved in in May 2007 but that the house was largely uncompleted.  This evidence was not challenged in cross-examination, even bearing in mind that the wife was self-represented.  I should say in passing that she proved well capable of formulating questions about those matters that concerned her. 

5. Although the funds were not received until August or September 2007 it seems far more probable to me than otherwise that they were indeed applied to the ongoing process of the completion of the property.  To the extent that they were not, they were undoubtedly applied to the mortgage.  The husband, while presenting as deeply hostile to the wife, nonetheless did not strike me as an untruthful witness.  The same can be said in reverse for the wife.  To the extent that I have not accepted their evidence, it is simply a question of the fallibility of human memory.

6. The sorry squabble about the sale of the (omitted vehicle) was, in my view, completely resolved by the evidence given by [X].  The car was sold with her agreement and the funds were applied to the benefit of the mother’s car repayments. 

7. Counsel for the husband sought to compare the figure of his client’s contribution with the final result.  That, to my way of thinking, is simplistic and unfair.  This relationship lasted 20 years.  It got off to a financial start, so to speak, because the wife made a contribution.  It got a significant shot in the arm some 10 years later from the husband’s inheritance.  However, of that inheritance only about $120,000-plus was actually contributed to the property.  When compared with the wife’s initial $40,000, of which $30,000 was at the very beginning, the disparity is not that great in any event bearing in mind inflation.  It is no longer, in my view, necessary to talk in terms of erosion by time of contribution.  It is a matter of the Court looking at the parties’ contributions fairly given the continuum of their relationship and its outcome. 

8. Given the husband’s earning capacity and the relative size of the mortgage at the time of separation it does seem probable that, at the very least, the couple lived well. It should be noted that on the husband’s own evidence the wife was not only the home maker but would have had far more care of [X] when she was being brought up.  He was away and indeed it would have appear overseas for 70 per cent of the time. 

9. Even if [X] was, as is the case, at school for much of the time, the wife’s contribution as a home maker was significant.  Her complaints of her lack of capacity to earn need to be seen in proper context bearing in mind that one might feel that she would have been able to work at least part time from time to time. 

10. Taking all these matters into consideration in my view a proper analysis of the parties’ contributions is 55 per cent in favour of the husband and 45 per cent in favour of the wife. 

Future Needs

1. Here the picture is stark.  The husband is well aware that the wife has ongoing health difficulties and I fully accept that she will have to have further surgery.  She will have to retrain if she wishes to access a greater wage than her now somewhat under average weekly earnings.  Her desire to retrain is entirely and eminently reasonable and should be applauded and not sneered at.  She is 54 years old and has six less earning years than the husband and will spend much of the next two years in study with little or no remuneration.  The wife’s earning capacity is very substantially less than the husband’s.  At present she makes some $65,000 a year and he makes approximately $200,000.  His health, unlike that of the wife, is completely unexceptionable.

2. In my view, given these disparities, which will continue to obtain even if and when the wife has achieved the qualifications she seeks, an adjustment of some 15 per cent to the wife is entirely appropriate in respect of future needs.

Just and Equitable

1. In my view, an overall split of the parties’ non-superannuation assets of 60/40 in favour of the wife is entirely a just and equitable outcome given the various competing considerations to which I have referred. 

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 23 January 2018