PARKER and PARKER

[2012] FCWA 16

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PARKER and PARKER [2012] FCWA 16

CORAM: MONCRIEFF J

HEARD: 13, 16, 17, 18, 19 & 20 JANUARY 2012

DELIVERED : 20 JANUARY 2012

FILE NO/S: PTW 1217 of 2010

BETWEEN: PARKER

Applicant Husband

AND

PARKER
Respondent Wife

Catchwords:

PROPERTY - asset pool - addbacks - application for s 75(2)(o) adjustment unsuccessful

Legislation:

Family Law Act 1975 (Cth) s 79

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Klimek

Respondent: Mr M Berry

Solicitors:

Applicant: Klimek & Co

Respondent: Gibson & Gibson

Case(s) referred to in judgment(s):

Kannis and Kannis (2003) FLC 93-135

Marker and Marker [1998] FamCA 42

Omacini and Omacini (2005) FLC 93-218

Tomasetti and Tomasetti (2000) FLC 93-023

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The parties in this case commenced cohabitation in late 1980 or early 1981, although there is some disagreement between the version of the parties, it is largely irrelevant to the determination of the dispute between them. They separated on 20 January 2010. At the time of trial, the husband was 48 years of age and the wife was 46 years of age. They married [in] March 1984. There are three adult children of the marriage [Bradley], 27; [Ross], 25 and [Andrew], 21.

2The parties are unable to agree a financial settlement between them and the litigation between them, subsequent to separation, has been conducted in an atmosphere of hostility. That atmosphere has continued through to the conduct of the trial before me.

3However, I have been assisted in that the parties have reached agreement about significant aspects of the matter and that is to their credit and to the credit of counsel. As the parties would be aware, in determining an application for financial settlement, the court must go through four separate and distinct steps. Firstly, the court must ascertain the pool of assets that are available for division between the parties.

4To this extent, there is some limited disagreement between the parties as to what comprises the pool of assets. There is some disagreement as to how I should treat some of the assets. There is some disagreement as to assets that should be taken into account, or otherwise added back, within the meaning ascribed in Omacini and Omacini (2005) FLC 93-218 and having regard to the criteria set out therein.

5The second step that the court must undertake is to make an assessment of the parties' contribution. Here, very sensibly, the parties agree that, upon the conclusion of their relationship, spanning some almost 30 years, that contributions should be assessed as equal. Not only do I think that is a sensible approach, it is one consistent, in my view, with the factual matrix that surrounds the matter.

6I do not propose to set out in any detail the background of the history of the parties' marriage. Given the concession made as to contribution, that becomes largely unnecessary. However, it should be recorded that the parties, at the time of separation, were residing on a property at [property A] which was conducted as a very small farmholding and also as the base from which the husband, in particular, with the assistance of the parties' sons, who regrettably are now alienated from him, conducted an earthmoving business.

7The wife, when she was able to do so, having regard to her commitments as a parent during the children's infancy, returned to work and is in full‑time employment [as] a financial controller, and from time to time she acts in higher duties. The third factor that I must consider is whether or not I should make any adjustment, having regard to the finding made on contribution and the factors prescribed under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).

8In other words, I must have a look at the resultant outcome given the finding made on contribution, which, in this case, is agreed to be equal, and determine whether any adjustment should then be made in favour of either of the parties. Having then considered that aspect of the matter, I must step back from my determination and consider whether the outcome that is proposed is just and equitable in all the circumstances of the parties.

9The husband sought to rely on affidavits of himself filed on 5 May 2011, a supplementary affidavit of himself filed on 5 May 2011, [Zachary Peters] filed on 29 December 2011, [Donald Clemens] filed on 29 December 2011 and [Alexander Salter] filed on 29 December 2011 and the evidence of two further witnesses, [Michael Silver] and [Melissa Silver].

10The wife sought to rely on affidavits of herself sworn on 12 July 2011, [Len Winters] sworn on 12 October 2011, [Helen Wilson] sworn on 12 October 2011, [Paul Redding] sworn on 11 January 2012, [Sonia Milligan] filed on 11 January 2012, [Ron Mather] filed on 11 January 2011 and [Rex Hare] filed on 11 January 2012.

11However, the witnesses that became particularly relevant in the course of these proceedings were, of course, the husband and the wife and, of particular note, Mr and Mrs Silver and I refer to their evidence further.

Evidence

12A body of the determination in this matter turns on my findings as to the credit of the parties and how they presented to me and my assessment of them as witnesses. The husband struck me as an unsophisticated person. However, I formed the view that he was striving to be genuinely honest. Perhaps his presentation of his evidence was done somewhat naïvely. For example, the photographs of the dead stock that he sought to admit, which had little evidentiary value. But I consider that he believed he was undertaking a genuine attempt to try and establish evidence in his case.

13I accept his evidence that the future for him is somewhat uncertain as it is proposed that the property be sold and given the plant and equipment that he seeks to keep, that the amount of cash available to him in terms of re‑establishing himself on a property, may be more limited. I make mention of that because one of the issues at large between the parties is the disposition of a body of plant and equipment.

14The wife, in contrast to the husband, was a singularly unimpressive witness. She was aggressive in her evidence and she was argumentative. She was always keen to urge upon the Court that she should not be held responsible for her actions; that the fault should always lie at the feet of the husband. Notwithstanding the fact that I will find, as I have indicated during the trial, that the wife had a claim of right to retain certain funds, she did so in an immediate breach of orders, the orders having been made the previous day, and did so without notice.

15It is extraordinary that she would take that step in total disregard of an order that had been made less than 24 hours previously. The wife's anger towards the husband is palpable and, indeed, her view of him was not even restrained, in terms of her statement to the police, which she reaffirmed in the witness box. When it was put to her that she had referred to the husband's girlfriend as his "skank girlfriend" she still clearly held that view and considered that language and description to be appropriate.

16I accept the fact that the wife was hurt, distressed and upset about the separation. It appears to me, however, that this continues to pervade her presentation and the way in which she presents her case. It reflects poorly upon her evidence, as her evidence is coloured, in my finding, by her own emotional response to the circumstances. The assertions that she made of hiding of assets were unsubstantiated and I accepted the evidence of Mr Silver.

17I accept also that the wife took steps to attempt to dispose of one of the assets, namely a go‑cart, and do so without accounting to the husband. But for Mr Silver's refusal to go along with the proposal, I have no doubt she would have done so. Where there is a conflict of evidence between the husband and the wife that can be resolved only on the basis of credit, I prefer the evidence of the husband.

The asset pool

18I turn now to consider the issues in dispute relating to the asset pool. The asset pool was presented to me as follows:

ASSETS & LIABILITIES as at Conclusion of Trial 20/1/2012
#	Assets	Husband's Value	Wife's Value
Joint
1	Property A	$ SALE	SALE
[Parker T/A Parker& Sons]("Partnership")
2	11 horses of commericial value	$ 36,000	$ 36,000
3	7 horses of no commercial value	$ NIL	NIL
4	Proceeds from sale of 2 horses	$ 6,000	$ 6,000
5	Other livestock (3 pigs, 20 goats, 21 sheep and pidgeons)	$ 2,150	$ 2,150
6	Hay in storage (4,000 bales)	$ 16,000	$ 32,000
7	Hay in paddock (262 rolls)	$ NIL	NIL
8	CBA Account [1]	$ 5,220	$ 5,220
8A	Cows	NIL	NK
[Parker] & Sons Pty Ltd ("Company")
9	CBA Account [2]	$ 18,611	$ 18,611
Company and Partnership Assets per Gregson's Valuation
10	Details from Valuation [x]	$ 274,568	$ 274,568
11	Details from Valuation [y]	$ 5,091	$ 5,091
12	Details from Valuation [z]	$ 8,165	$ 8,165
Husband
13	Furniture property A	$ 13,014	$ 13,014
14	455 Telstra shares (TLS)	$ 1,497	$ 1,497
15	Holden [1]	$ 37,500	$ 37,500
16	TAL Superannuation	$ 56,483	$ 56,483
17	AXA Superannuation	$ 27,612	$ 27,612
18	CBA savings account [1]	$ NIL	NIL
19	Construction Industry Payment Long Service Leave Payments Board entitlement	$ NIL	$ 8,300
20	ADDBACK - Half of joint accounts divided on 25 January 2010 & 10 February 2010	$ 13,328	$ 13,328
21	ADDBACK - Refund of most of deposit from Mancrest Mining for Canadian Bale Baron tractor	$ 12,672	$ 12,672
21A	ADDBACK - Tax refund 2008/2009 individual	$ 1,928	$ 1,928
Wife
22	Furniture ([property B] excluding Holden [1] & [the] Mazda)	$ 3,264	$ 3,264
23	Mazda	$ 14,091	$ 14,091
24	199 Wesfarmers shares (WES)	$ 5,970	$ 5,970
25	167 APA Group shares (APA)	$ 755	$ 755
26	18,000 Yellow Rock Resources shares (YRR)	$ 198	$ 198
27	55,000 Millennium Minerals shares (MOY)	$ 1,210	$ 1,210
28	TAL Superannuation	$ 49,058	$ 49,058
29	GESB Superannuation	$ 40,592	$ 40,592
30	CBA savings account [2]	$ NIL	$ NIL
31	ADDBACK - Half of joint accounts divided on 25 January 2010 & 10 February 2010	$ 48,000	$ 25,668
32	ADDBACK - Withdrawal from business chequebooks on 23 April 2010	$ 5,183	NIL
33	ADDBACK - Withdrawal from account	$ 1,200	NIL
34	ADDBACK - $USD cash removed from home safe on 23 January 2010	$ 2,500	NIL
35	ADDBACK - $AUD Cash removed from home safe on 23 January 2010	$ 3,000	NIL
36	ADDBACK - Sale of 55 Prime Infrastructure shares (PIH) on 12 April 2010	$ 218	$ 218
37	ADDBACK - Payment for 345 Alinta Energy shares (AEJ) on 18 April 2011	$ 34	$ 34
38	Scrapbooking items and materials	$ 1,000	$ 1,000
39	Assorted jewelry, Husband's wedding ring and gold nugget	$ NK	NK
TOTAL ASSETS (INCLUDING SUPERANNUATION)	$ 712,112	$ 702,197
Liabilities
Joint
40	Home mortgage	$ 63,000	$ 63,000
41	Taxation liability of parties, Partnership and Company to date	$ NK	$ NK
43	Accountancy costs of bringing to date Partnership and Company financials	$ NK	$ NK
44	Capital Gains Tax Liability of parties for sale of property A	$ NK	$ NK
45	Costs of sale of the property A	$ NK	$ NK
Husband
46	CBA Mastercard credit card	$ NIL	$ NIL
47	Loan from Zachary Peters	$ N/A	$ N/A
Wife
48	CBA Visa credit card	$ 2,749	$ 2,749
49	Citibank loan from parents	$ N/A	$ N/A
49A	Wife's 2008/2009 individual tax liability incl. Penalty	$ 165	$ 1,205
TOTAL LIABILITIES	$ 65,914	$ 66,954
TOTAL NET ASSETS (INCLUDING SUPERANNUATION)	$ 646,198	$ 635,243

19The issues in dispute were narrowed overnight as a result of severe rain. The severe rain has damaged the value of some hay in storage. The value of the hay in storage was in dispute between the parties. It appears to be agreed that whatever hay is left upon the agreed sale of the property at property A should be offered for sale to achieve the best price.

20Further, it is agreed that if there is any entitlement to an insurance claim and compensation for damage to any of the hay in storage, that the proceeds of that will be divided in the percentages I determine. As to the rolls of hay, line item 7, in the paddock, it has been agreed that the wife will retain those, or such of them as she requires without adjustment to value and she will arrange to have them removed.

21The first significantly disputed item in the pool of assets relates to the cows. It is the evidence of the husband that the herd of cows that he had maintained, which is a fairly modest herd, was sold. The wife's case is that she does not believe that the husband has sold the cows and presumably is secreting them somewhere. There was no evidence, notwithstanding the fact that initially the wife had sought to rely on affidavits of private investigators, to suggest as to where the cows might be. Nor was it ever put to the husband that he had either secreted the cows or otherwise taken them from view.

22Given the attendances by the wife at the property post-separation, I find it extraordinary that there was no attempt made to ascertain the numbers of cows. Particularly given that the wife had been alerted to the position insofar as the stock generally was concerned in the preparation of the financial statements for the businesses and had refused to accept the stock numbers.

23The other thing that is curious about the evidence as it unfolded in relation to the cows is that the evidence advanced by the husband was that he had banked all of the proceeds of the sale of the cows into the relevant account. He produced and it was admitted into evidence, a deposit book entry, which purported to record a deposit of the sale of the last cows. That, of course, is a self‑serving statement, as both Mr Berry of counsel for the wife and I observed at the time.

24However, the wife's case was not taken beyond an assertion that it "beggared belief" that the husband would sell the cows, which has been an interest of his for some time, and yet retain horses which had been primarily an interest of one of the parties' sons. There were avenues for attack available upon the husband's evidence, such as an analysis of the bankings and comparable values and any requirement for the production of sale slips.

25The husband's position was clear and his position was largely unchallenged by any analysis of his position that may have unseated it. I was simply invited not to believe it and, in fact, I am in the position where I do believe it and I accept his evidence. The cows, accordingly, will be recorded as having a nil value.

26The second item about which a determination is required is line item 19 in the schedule the Construction Industry long service leave payment entitlement agreed to have a "surrender value" of $8,300. Mr Klimek, counsel for the husband, quite properly refers me to the decision of the full court of the Family Court of Australia in Tomasetti and Tomasetti (2000) FLC 93-023, where the Full Court was critical of the trial judge for treating long service leave as an asset, notwithstanding the fact that, like in this case, it was available for the husband in cash.

27The husband in Tomasetti (supra) had not made that choice and he has not made that choice here. The wife also has long service leave entitlements that are accruing. Her evidence was that she will be able to take those long service leave entitlements in some 18 or so months. It is not a long wait. Her evidence, which I quite frankly found unconvincing, was that she was "looking for another job" and that she did not think she would necessarily receive those entitlements.

28Yet, on the other hand, she has indicated that she actively seeks higher duties in her employment and that if a position of level 6 was available as a manager, then she would certainly put her hat into the ring to attempt to secure that employment. I find, on balance, that it is more probable that the wife will not leave her employment prior to obtaining her long service leave than she will. Accordingly, I propose to exclude from the pool of assets the long service leave entitlements of each of the parties.

29I am then asked to consider the extent to which I should add back into the pool of assets a distribution made in favour to the wife of $48,000. A similar distribution was made to the husband. The figures now, insofar as the husband are concerned, are agreed. This is subject to the proviso that, if there is an adjustment necessarily made in the accounts of the company, as the parties have done in the past, then that adjustment is to be made to ensure that there is no unintended tax penalty outcome for either of the parties. This is because for a period of time Mr Parker, the husband, was meeting expenses pertaining to the operations of the businesses from what could be described as his own, as opposed to partnership or company, resources.

30The wife seeks to have the amount added back reduced by monies she expended on a medical procedure. The only issue pertaining to the medical procedure arose during the course of the trial. It arose in response to an adjustment sought by the husband with respect to the monies that he had received. Whilst I accept that the husband sought his adjustment late in the proceedings and through the filing of documents late in the proceedings, he did at least make a genuine and concerted effort to lay out the basis of his claim and bare it to scrutiny. Ultimately, with the rider that I have mentioned, it has been largely accepted.

31The wife, on the other hand, has not done so. She gave, with my leave, evidence about having undergone a medical procedure for which she was not entitled to claim a full rebate. She paid a surgeon slightly in excess of $16,000. A portion of the anaesthetists account was not recoverable as it referred to a liposuction. Some of the account for the hospital was paid, but a balance was not paid by her private health fund.

32It is my view that I can take judicial notice of the fact that Medicare will pay a benefit on items that properly attract what is known as an "item number" under the relevant legislation and in the practice of Medicare. The wife's clear evidence was that, for the most part, although not a defined part, other than the hospital account, and the anaesthetist's account, she was not entitled to any rebate.

33What is unusual about the position taken by the wife is that for reasons best known to her she elected in the course of her evidence‑in‑chief not to disclose the nature of the procedure that she had undergone. How then can I be expected to make a finding as to the use of funds for necessary, reasonable or properly‑incurred expenses? As Mr Berry quite rightly put to me, the adding back of a sum taken is not automatic; it is an exercise of discretion. It is an exercise of discretion, however, having regard to all of the circumstances surrounding the use of the money.

34In cross‑examination the wife was not asked about the procedure that she undertook but simply about the funds that she had expended therefore. It was not until re‑examination that the issue of the procedure was further agitated and I declined to allow further questioning as to the nature of the procedure, given the leave that had already been granted in examination‑in‑chief. It is not to conduct a case in re‑examination and particularly where there has been what I might describe as such a late entry of an issue about which, had it occurred to the wife to raise it earlier, she had ample time in which to properly raise it and properly adduce evidence for scrutiny.

35The raising of this claim was, in my view, a “knee‑jerk reaction” to the fact that the husband had sought to diminish the sum paid to him as a result of the expenditure to which I have referred, which has now been agreed. Regrettably, it again underscores what I might describe as a somewhat "tit for tat" attitude that has been apparent in parts of this litigation.

36The further addback that is the subject of dispute is line item 32. It is the withdrawal from business cheque books on 23 April 2010. As I have mentioned earlier, the parties entered into orders on 22 April 2010 and intended to define the future conduct of the business pending trial. Notwithstanding those orders, the wife took it upon herself to withdraw from the business the sum of $5,183.

37The unchallenged evidence of the husband was that it put the business into overdraft, a fact about which I am satisfied the wife had little or no to regard and, frankly, did not care. She sought to refund herself for monies charged to her VISA account, an amount of $5,183 said to be, on the cheque butt, for expenses incurred in the last quarter of the previous year, namely the October‑December quarter of 2009.

38Extraordinarily enough in her evidence the wife said that the cheques related to payments made in January and it may well be that they did because there was no cross‑examination of the wife about the nature of the payment. The cheque butt was attached to the husband's supplementary trial affidavit and no evidence was led about the nature of the payment.

39Having regard to the history of the way in which the parties conducted their business, I find, on balance, that the wife did have a claim of right to the money. It was the situation, historically, according to the wife and about which evidence the husband did not dispute, that the parties would intermix personal and corporate expenditure on fuel cards, credit cards and the like. They then would ask the accountant, in the preparation of the books, to make the final, appropriate adjustments with, until some time after the separation, the wife doing the MYOB inputs reflecting private use.

40It is for that reason that I have referred also to the adjustment that should be made in the accounts with respect to the amount to be added back and the credits to be given to the husband to which I have referred. Whilst the wife's conduct, in terms of conduct and in terms of consequences and then the absence of notice, can be criticised, I do find she was entitled to those funds and, accordingly, I propose to exercise my discretion against adding them back into the pool of assets.

41The next item pertains to a withdrawal of the sum of $1,200 from an account set up by the wife. She says she paid monies into the account in anticipation of saving money for an overseas holiday that had been arranged. The holiday was intended to be taken shortly after the parties separated, but at the time that the arrangement was made, it was the joint intention of the parties that some monies should be made available.

42Mr Berry argues, on the wife's behalf, that the wife going on holiday, as had been anticipated, was not unreasonable, it was a reasonable use of funds and he refers me to the authority of Marker and Marker [1998] FamCA 42, 1 May 1998 in support of that proposition. I propose to exercise my discretion in favour of the wife and not add the amount back into the pool. Clearly, it was a joint intention of the parties that these funds be made available. That the husband did not derive the benefit of those funds was a relatively minor consequence of the parties' separation.

43However, I am also asked to exercise my discretion in a similar way about funds removed from the safe. Clearly, it was a common position of the parties that there was some United States dollar currency and some what I might call "current" currency, that is, currency commonly in circulation in Australian dollars situated in the safe. It is not disputed by the wife or the husband that the wife removed all of the currency, that is, the US dollar currency and the Australian dollar currency to which I've referred, from the safe.

44The wife says that she left behind some $2 coins and some 50 cent coins, although the 50 cent coins were not put to the husband. It also appears common ground that there was some older non current paper Australian currency left behind. There was no attempt to quantify the currency left behind, other than an assertion made by the wife that had not been put to the husband. The difficulty is the quantum.

45The husband has clearly asserted and maintained that the amount removed from the home safe on 23 January by the wife was USD$2,500 and AUD$3,000. That it was any other number was never put to the husband. There was no suggestion other than that the wife removed all of the currency. What was put to the husband was that there was an amount removed by the wife; not that all of the currency comprised the amounts said to have been removed by the wife. In this case, I prefer the evidence of the husband.

46Further, notwithstanding Mr Berry's argument about the fact that this also apparently was used for holidays, it is, in my mind, to stretch what is reasonable and necessary, or appropriate, in terms of the exercise of my discretion to say that it was an appropriate use by the wife of the funds. I have no doubt that the wife took the opportunity to take the available funds and retain them as she did.

47There was a dispute between the parties about the scrapbooking items and materials, which now appears to have been resolved. The husband now accepts my indication during the course of evidence that I will ascribe the value given by the wife of $1,000 to those materials based upon the wife's assertion as to what the items comprised and the logical connection between the wife's nominated value and her unchallenged evidence about what she says it comprised. Accordingly, that item will be included in the schedule at $1,000.

48The only other issue that I need to determine, in terms of the pool, is whether the wife should have taken into account, on her side, a liability for CBA VISA card said to have been $2,749 as at 19 January 2010. Given that the cheques that were drawn against the partnership and company account to which I have referred and about which I have said the wife has a claim of right related to repayment of sums charged to her VISA card, it would, in my view, be a double count if I were to allow the VISA card debt, whilst not allowing the addback of the funds had by the wife.

49Logic would dictate that if the funds were said to be used to discharge a VISA card, then they would discharge the VISA card, particularly given that the date relevant for the VISA card is shortly after the October‑December quarter to which I have referred and the sums taken were greater than the stated balance of the VISA card.

50The other aspect of the pool of assets that needs to be considered really falls into the question of the form of orders and that is as to the disposition of the pool. There are two particular items that are highly contentious as between the parties. They are the disposition of Holden [1] and plant and equipment that is now claimed by the wife. I will deal, firstly, with the question of the plant and equipment.

51The wife, in her papers for the judge, annexed to the orders sought a demand for certain items of property as follows:

two ladders;

one set 3.6 tonne ramps;

log docking saw powered by a Vanguard bucket;

skid steer loader sand bucket;

five skid steer rims and tyres;

two new skid steer tyres;

assorted car panels and exhaust;

all items for Holden [1];

[a] 66 chainsaw;

assorted extension cords, approximately 11;

[a] quad bike;

[a] skid steer loader, commonly know as a "bobcat";

Gillard flame dirt kart and all accessories;

[a] compactor with extension wings;

Digger cleaner road‑sweeper bobcat attachment;

hydro power profile of bobcat attachment;

[a]l quick cut saw;

stack-on professional series toolbox and mobile stand ("Jack");

[a] three quarter inch drive socket set;

diesel powered portable powers 9 KVA generator; and

laser marked rotary laser receiver staff and stand.

52The first notice given by the wife that she sought these items was in her papers for the judge, which were filed on 9 January 2012, three days prior to the commencement of the trial. The husband's uncontradicted evidence was that the wife would not know how to operate most of these items as they form part of the plant and equipment relevant to the earthmoving business about which there appears to be no dispute that he will retain.

53The wife's evidence about her desire to have these items was utterly unconvincing. She accepted that she did not know how to use some of the items and had never used some of the items. Her argument in her favour was that she might be able to use these items if she obtained a rural property and, therefore, she would not need to have other people undertake the work on it, such as the making of a driveway or compacting of a driveway.

54I find the wife's claims in this regard incredible and without merit and, unfortunately, they are indicative of what I find is the attitude that the wife continues to maintain against the husband. There are two reasons only available for these requests, in my finding. One could be that the wife has a genuine desire for these items. The wife has, in the past, created detailed lists of items that she sought to procure from the former matrimonial residence. These items have never appeared on such a list, which is odd if the wife's claim is genuine.

55The other reason would be that the wife wanted to seize a commercial advantage, perhaps, in the retention of these items, or, alternatively, a commercial disadvantage to the husband, which sadly is the more likely of the motivations of the wife. I am unconvinced as to the wife's reasons for the passage of those items to her. I am not satisfied, on balance, that I should make an order as sought in her favour and I decline to do so.

56The other item is the Holden [1]. Following the parties' separation, the wife attended at the former matrimonial residence on several occasions to procure the return of items. On one occasion, she attended at the property to sign some documents. The husband had left the property leaving the documents for her, according to the wife. The wife was in attendance with another person. They had driven there in the wife's Mazda motor vehicle. Upon the husband leaving, the wife then obtained both sets of keys to Holden [1], one being inside the car, but also the set of keys that was in the house, and drove off with the motor vehicle.

57She was only at the property on that occasion for 15 minutes. I have little doubt that she wanted to make a quick getaway with the Holden [1] lest the husband should return before she had the opportunity to remove it, or be otherwise frustrated in her attempts. The wife says that she needed the motor vehicle because she was having problems with her Mazda motor vehicle and it appears, from the evidence of the parties, that argument may have been accepted in April 2010 by the presiding magistrate, who made orders permitting the wife the use of the vehicle until further order.

58The wife's evidence before me was that the problems with the Mazda motor vehicle have now been identified and resolved. It would appear that any issue of necessity has evaporated. What is extraordinary about the wife's evidence about the Holden [1] is that she says that the vehicle had been modified with the inclusion of three switches which were somehow related to the motor vehicle's performance. She said she was unaware that the motor vehicle had been modified and only found out about that when she took it from the property.

59She made what I consider to be an extravagant claim and, frankly, unrealistic, that, as a consequence of these modifications, the warranty for the vehicle, some five years on, would have been voided. It is clear from her own evidence that the wife did not drive this vehicle often and still retains it as a low‑mileage motor vehicle. The modifications to which the wife refers that were done to the vehicle, it would seem, were undertaken by the husband as part of his interest in motor vehicles. He additionally has a high performance Holden [2], referred to in the valuations agreed between the parties.

60The wife said in her evidence that all the dockets and relevant paperwork for the modification to the vehicle were in the vehicle. Yet she made no attempt to introduce that material into evidence so that I might ascertain when the modifications were undertaken. That would have enabled me to make a clear determination about when it was that she had previously driven the vehicle, which might reflect upon the frequency of use by her, which according to the husband she overstated.

61Following separation, there is no doubt that the wife was angry. That anger, at times, spilled over between the parties into physical altercations between them for which neither of them could in any way be considered admirable conduct. There are other actions taken by the wife in her state of rage following the parties' separation, for I find that she was in a state of rage borne of hurt. I accept that, but rage turned to spite.

62She removed clothing that was in the property that belonged to the husband's girlfriend, Ms [Danube], about whom I will refer later. She knew that the Holden [1] was of significance to the husband. I have no doubt that the vehicle was removed out of spite. Spite is not something that this Court will reward. The vehicle will be returned and I will so order.

63The asset pool, as I have found, is as follows:

#	Assets	Judicial Decision	Husband Retains	Wife Retains	Notes
Joint
1	Property A	SALE	SALE	SALE
[“Parker Partnership”]
2	11 horses of commericial value	$ 36,000	$ 36,000
3	7 horses of no commercial value	NIL	NIL
4	Proceeds from sale of 2 horses	$ 6,000	$ 6,000
5	Other livestock (3 pigs, 20 goats, 21 sheep and pidgeons)	$ 2,150	$ 2,150
6	Hay in storage (4,000 bales)	NIL	NIL	Hay remaining at sale of property A to be sold and proceeds divided equally
7	Hay in paddock (262 rolls)	NIL	NIL	Wife to retain at nil value if collected within agreed timeframe
8	CBA Account	$ 5,220	$ 5,220
8A	Cows	NIL
[Parker Pty Ltd ("Company")]
9	CBA Account [2]	$ 18,611	$ 18,611
Company and Partnership Assets per Gregson's Valuation
10	Details from Valuation [X]	$ 274,568	$ 274,568
11	Details from Valuation [Y]	$ 5,091	$ 5,091
12	Details from Valuation [Z]	$ 8,165	$ 8,165
Husband
13	Furniture (property A)	$ 13,014	$ 13,014
14	455 Telstra shares (TLS)	$ 1,497	$ 1,497
15	Holden [1]	$ 37,500	$ 37,500
16	TAL Superannuation	$ 56,483	$ 56,483
17	AXA Superannuation	$ 27,612	$ 27,612
18	CBA savings account	NIL	NIL
19	Construction Industry Payment Long Service Leave Payments Board entitlement	NIL	NIL
20	ADDBACK - Half of joint accounts divided on 25 January 2010 & 10 February 2010	$ 13,328	$ 13,328
21	ADDBACK - Refund of most of deposit from Mancrest Mining for Canadian Bale Baron tractor	$ 12,672	$ 12,672
21A	ADDBACK - Tax refund 2008/2009 individual	$ 1,928	$ 1,928
Wife
22	Furniture (property B excluding Holden [1] & the Mazda)	$ 3,264	$ 3,264
23	The Mazda	$ 14,091	$ 14,091
24	199 Wesfarmers shares (WES)	$ 5,970	$ 5,970
25	167 APA Group shares (APA)	$ 755	$ 755
26	18,000 Yellow Rock Resources shares (YRR)	$ 198	$ 198
27	55,000 Millennium Minerals shares (MOY)	$ 1,210	$ 1,210
28	TAL Superannuation	$ 49,058	$ 49,058
29	GESB Superannuation	$ 40,592	$ 40,592
30	CBA savings account	$ NIL	$ NIL
31	ADDBACK - Half of joint accounts divided on 25 January 2010 & 10 February 2010	$ 48,000	$ 48,000
32	ADDBACK - Withdrawal from business chequebooks on 23 April 2010	NIL	NIL
33	ADDBACK - Withdrawal from account	NIL	NIL
34	ADDBACK - $USD cash removed from home safe on 23 January 2010	$ 2,500	$ 2,500
35	ADDBACK - $AUD Cash removed from home safe on 23 January 2010	$ 3,000	$ 3,000
36	ADDBACK - Sale of 55 Prime Infrastructure shares (PIH) on 12 April 2010	$ 218	$ 218
37	ADDBACK - Payment for 345 Alinta Energy shares (AEJ) on 18 April 2011	$ 34	$ 34
38	Scrapbooking items and materials	$ 1,000	$ 1,000
39	Assorted jewelry, Husband's wedding ring and gold nugget	NIL	NIL
TOTAL ASSETS (INCLUDING SUPERANNUATION)	$ 689,729	$ 519,839	$ 169,890
Liabilities
Joint
40	Home mortgage	$ 63,000	NIL	NIL	Paid out at sale of property A
41	Taxation liability of parties, Partnership and Company to date	$ NK	$ NK	$ NK
43	Accountancy costs of bringing to date Partnership and Company financials	$ NK	$ NK	$ NK
44	Capital Gains Tax Liability of parties for sale of property A	$ NK	$ NK	$ NK
45	Costs of sale of the property A	$ NK	$ NK	$ NK
Husband
46	CBA Mastercard credit card	$ NIL	$ NIL
47	Loan from Zachary Peters	$ N/A	$ N/A
Wife
48	CBA Visa credit card	NIL	NIL
49	Citibank loan from parents	$ N/A	$ N/A
49A	Wife's 2008/2009 individual tax liability incl. Penalty	$ 1,205	$ 1,205
TOTAL LIABILITIES	$ 64,205	$	$ 1,205
TOTAL NET ASSETS (INCLUDING SUPERANNUATION)	$ 625,524	$ 519,839	$ 168,685

Adjustments pursuant to the factors prescribed in s 75(2)

64I must now turn to consider whether or not I should make any adjustment, having regard to the factors under s 75(2). In this regard, Mr Berry argues that I should make an adjustment merely based on a Kannis-type argument (referring to Kannis and Kannis (2003) FLC 93-135) on the basis that I cannot be satisfied that the husband has properly and fully disclosed his circumstances and, further, that the husband has failed to adduce evidence from Ms Danube, whom he describes as a his "girlfriend".

65Any adjustment in my finding, based on the principles in Kannis (supra), must fail because I have found the husband has conducted these proceedings with propriety and I have found no want of disclosure. There may be criticism levelled at the husband for the late provision of material. However, the same criticism could certainly be levied at the wife and, as I have made abundantly clear during the course of these proceedings, I do not hold the parties accountable for that.

66However, to make the adjustment sought, relying on the principles expounded in Kannis, I must be left with a real disquiet about the presentation of the husband's case. I am not satisfied that the wife can demonstrate that the husband has withheld information, or has been other than frank or genuine in the presentation of his case. He has, in my finding, presented his case honestly, as I have found earlier in these reasons. Accordingly, I reject that basis for an adjustment under s 75(2)(o).

67The other adjustment that is sought, also under s 75(2)(o), is also relevant to s 75(2)(m) that is:

If either party is cohabiting with another person, the financial circumstances relating to the cohabitation.

68The wife's case is that Ms Danube should be treated as being in a relationship, or a de facto relationship, with Mr Parker, the husband. In support of that, it is asserted on behalf of the wife that Ms Danube clearly spends time at the property. This is not disputed. The husband's position, which is set out somewhat briefly in his affidavit, is as follows, paragraph 76:

I am currently in a relationship with [R] Danube, the circumstances of which are as follows:

(a)R is my girlfriend;

(b)R assists me with caring for the animals on the farm, maintaining the gardens and any miscellaneous assistance on the farm that may be required from time to time;

(c)R is not remunerated for her assistance on the farm, but she does currently have three horses and two dogs who are staying on the property; and

(d)R previously stayed overnight at the farm approximately three to four nights a week, as the travel time from her permanent residence makes this arrangement convenient. Presently, R stays overnight about two or three nights per week, as she now more frequently stays with a girlfriend in [a country town nearby] from time to time.

69Whilst, clearly, the husband is in a relationship with Ms Danube, what is the nature of the relationship and what are any of the financial consequences of that relationship? There is no doubt Ms Danube is his current girlfriend. There is no doubt that the husband has lost the assistance that he had from family members on the property, given that he has been estranged from his sons, utterly it would seem, in the case of the two elder boys, not so much in the case of the youngest. That, of itself, may account for some of the issues pertaining to the losses of stock, given the husband's capacity to manage the business and also look after the farm.

70The question is the nature of that relationship. Mr Berry, quite properly, refers me to a dependant nomination made to AXA pertaining to entitlements the husband may have by way of superannuation. He has included Ms Danube as his nominee for what is commonly known as "death benefit" nomination or a "dependant benefit" nomination. The husband says that he did it because he did not want the wife to get it. I consider that to be an honest answer, however, it begs the question as to why some provision would not be made for the boys. He is alienated from the eldest two, but not from the youngest and, of course, it's a nomination that the husband can change, as he fully acknowledged in his evidence. He said if his relationship with Ms Danube fell apart then it would be a situation where he would move to change it.

71That is the only evidence, in my finding, that supports any assertion that the relationship is other than boyfriend‑girlfriend. There has been no suggestion, or no cross‑examination, on accounts which would suggest any financial assistance from Ms Danube or that the parties' finances are in any way interrelated. It is suggested, on behalf of the wife, that Ms Danube recently received the sum of $105,000 by way of a settlement of property. It would seem that the wife seeks to connect that entitlement, or the receipt of that entitlement by Ms Danube, to the originally stated desire of the husband to retain the property, presumably relying on Ms Danube to finance it. In my view, that is a link that is stretched too far for me to be satisfied, given the presentation of the evidence by the husband, that that is necessarily his or Ms Danube's intention or likely to happen.

72That being said, criticism could be laid at the feet of the husband for not producing Ms Danube as a witness. His answer, in part, to that was that the relationship between Ms Danube and the wife was so volatile that he did not wish to put her in that position. That argument has some merit, however, is not decisive. Having found that the husband should be criticised for not calling Ms Danube, should I then be satisfied, in the exercise of my discretion, that there is a financial consequence, for that, which must, of its essence, be unquantifiable? I am not satisfied that I should make an adjustment based on that factor.

73There are many aspects of the preparation of this case on each side that have attracted my criticism during the course of the trial. It is not a case, in my view, that I should then, in judgment, penalise the parties for how they have conducted their case. I have no doubt that the husband is in a relationship with Ms Danube. There is nothing before me that suggests there are any financial consequences of that relationship that are relevant to my determination, other than as suggested by the husband, who I have found to be a witness of truth.

74The third aspect of the matter that I must consider under s 75(2)(o), which also then bridges into a consideration of what is a just and equitable outcome, is the fact that the husband has had the use of the property post-separation and whether I should make any adjustment for that factor. As Mr Klimek pointed out, the property here is not a penthouse; it is a rural property and it is a rural property that comes with obligations. Those obligations relate very heavily to the proper and lawful maintenance of the property, the stock thereof, and I have touched upon the problems that the husband has had in that regard.

75The wife, I accept, has had to rent a property. She has been in receipt of, and retained for her own purposes, her own income. Whilst it is true that the husband has had the use of the property, he has also had to discharge the obligations that come with the use of that property. He has continued to have the use of the equipment to earn an income, having regard to the draft financials, the income that is returned to him is not, in my finding, of such significance, when compared with the wife's, to warrant an adjustment in her favour.

76Accordingly, I find that there should be no adjustment, having regard to the factors prescribed under s 75(2).

Conclusion

77Accordingly, the orders will reflect that there is to be an equal division of property between the parties on the pool as I have found it, and on the basis that the husband retains the plant and equipment contained in the schedule annexed to the wife's papers for the judge and that the Holden [1] is returned to the husband in good order and condition.

78Such conclusion accords with the agreed contribution between the parties and is in my finding a just and equitable one. I will hear counsel as to the form of the orders.

I certify that the preceding [78] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate