Parsin & Parsin

FAMILY COURT OF AUSTRALIA

PARSIN & PARSIN

[2007] FamCA 1458

FAMILY LAW – PROPERTY SETTLEMENT – Contribution – Section 75(2) – Just and Equitable

Family Law Act 1975 (Cth)

Marriage of Hickey (2003) 30 Fam LR 355 at 370;
In the Marriage of Omacini (2005) 33 Fam LR 134;
In the Marriage of Rosati (1998) 23 Fam LR 288 at para 6.36; (1998) FLC 92-804;
Mallett v Mallett (1984) 9 Fam LR 449;
In the Marriage of Ferraro (1992) 16 Fam LR 1;
In the Marriage of Shewring (1987) l2 Fam LR 139;
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712;
In the Marriage of Zyk (1995) 19 Fam LR 797;
Whiteley and Whiteley (1992) FLC 92–304;
In the Marriage of Stay (1997) 21 Fam LR 626;
In the Marriage of Gould [1995] 20 Fam LR 1

APPLICANT:

Ms Parsin

RESPONDENT:

Mr Parsin

FILE NUMBER:

SYF

3495

2006

DATE DELIVERED:

November 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

8 & 9 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr D. Grieve QC with Mr G. O’Gorman
SOLICITOR FOR THE APPLICANT:	Owen Hodge Lawyers
COUNSEL FOR THE RESPONDENT:	Mr R. Lethbridge SC
SOLICITOR FOR THE RESPONDENT:	Coddington Lamont

Orders

That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as … E being the whole of the land comprised in certificate of title folio identifier …/SP… (the “[E] property”), the husband assume and retain responsibility for the pending shortfall (approximately $536,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage …8 to the National Australia Bank secured over the E property (the “[E property] mortgage”).
That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as …, N being the whole of the land comprised in certificate of title folio identifier …/… (the “[N] property”), the husband assume and retain responsibility for the pending shortfall (approximately $28,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage numbered …2 to National Australia Bank (the “[N property] mortgage”).
That, forthwith, the husband assume and retain responsibility concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) under the loan (presently a joint liability of the parties) procured for the purposes of assisting the child of the marriage, Mr B Parsin, represented by National Australia Bank loan account …1 (to approximately $134,000).
That, within sixty days of the making of this order, the husband do all things necessary to prepare and to make available to the wife’s solicitors a transfer to the wife in registrable form of the whole of the husband's right, title and interest in the property known as …, T being the whole of the land comprised in certificate of title folio identifier …/… (the “[T] property”).
That, upon and from transfer of the husband's interest in the T property pursuant to this order, the wife indemnify and keep indemnified the husband in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of the T property, including all payments due under the T mortgage and payments due under any other relevant encumbrance secured over the T property.
That, upon transfer of the husband’s interest in the T property pursuant to this order, the wife, forthwith, do all acts and things necessary to procure discharge of registered mortgage …48 to National Australia Bank (the “[T property] mortgage”) and to refinance as necessary in her own name and without recourse to the husband’s name.
That, should the wife not comply with order 6 within the period specified or such further period upon which the parties may agree, despite relevant compliance (or readiness to comply) on the part of the husband, the parties shall forthwith do all things to procure that the T property be sold by public auction at the earliest practicable date and, in particular, shall:
(a)place the property with the office of L J Hooker situated closest to the T property (or such other auctioneers as may be agreed between the husband and the wife) (hereinafter called “the auctioneers”) for auction at the earliest practicable date;
(b)execute all documents requested by the auctioneers for the sale of the property;
(c)request the auctioneers to recommend a reserve price to be placed on the property for the purpose of the auction sale and to accept such recommended reserve price;
(d)pay to the auctioneers any sums requested for advertising expenses in relation to the auction;
(e)attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(f)execute contracts for sale;
(g)cooperate in every way with the auctioneers in relation to the auction of the T property; and
(h)execute all other documents necessary to complete the auction sale.
That, if the above paragraph becomes operative, the parties do all things necessary to procure that, upon completion of the auction sale of the T property, the proceeds of sale shall be paid in the following manner and priority:
(a)in payment of the amount required to discharge the T property mortgage and any other relevant encumbrance secured over the T property;
(b)in payment of agent's commission and auction expenses (if any) due upon the sale;
(c)in payment of legal costs;
(d)in payment of the balance to the wife.
That, within sixty days of the making of this order, the wife do all things necessary to transfer to the husband the whole of the wife’s right, title and interest in the property known as …, K being the whole of the land comprised in certificate of title folio identifier …/SP… (the “[K] property”).
That forthwith upon the transfer of the K property the husband pay to the wife $162,715.45.
That, upon and from transfer of the wife’s interest in that property the husband indemnify the wife and keep her indemnified in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of the property including all payments due under registered mortgage …9 to National Australia Bank (“the [K property] mortgage”).
That, upon transfer of the wife’s interest in the K property pursuant to this order, the husband, forthwith, do all acts and things necessary to procure discharge of the said mortgage and to refinance borrowings as necessary in his own name and without recourse to the wife’s name.
That, should the husband not comply with both order 10 and order 12 within the period specified or such further period upon which the parties may agree, despite relevant compliance (or readiness to comply) on the part of the wife, the parties shall forthwith do all things to procure that the K property be sold by public auction at the earliest practicable date and, in particular, shall:
(i)List the property for sale by auction an auctioneer agreed between the Husband and the Wife and failing such agreement within 14 days of the default, with an auctioneer nominated by the President of the Real Estate Institute of Western Australia for auction at the earliest practicable date;
(j)execute all documents requested by the auctioneers for the sale of the property;
(k)request the auctioneers to recommend a reserve price to be placed on the property for the purpose of the auction sale and to accept such recommended reserve price;
(l)pay to the auctioneers any sums requested for advertising expenses in relation to the auction;
(m)attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(n)execute contracts for sale;
(o)cooperate in every way with the auctioneers in relation to the auction of the K property; and
(p)execute all other documents necessary to complete the auction sale.
That, if the above paragraph becomes operative, the parties do all things necessary to procure that, upon completion of the auction sale of the K property, the proceeds of sale shall be paid in the following manner and priority:
(a)in payment of the amount required to discharge the K property mortgage and any other relevant encumbrance secured over the K property;
(b)in payment of agent's commission and auction expenses (if any) due upon the sale;
(c)in payment of legal costs;
(d)In payment of any Capital Gains Tax obligation arising from the sale;
(e)in payment to the wife of $162,715.45; and
(f)In payment of the balance, if any, to the husband.
That, within sixty days of the making of this order, or within such further time as the parties may agree the Husband and the Wife do all such acts and things and sign all such documents as may be required to sell the following properties for sale by private treaty:
(1)    …, I (1), being the whole of the land more particularly described in Certificate of Title …/SP… ("[I (1)] Property");
(2)    …, I (2), being the whole of the land more particularly described in Certificate of Title …/SP… ("[I (2)] Property");
(3)    …, I (3), being the whole of the land more particularly described in Certificate of Title folio identifier …/… ("[I (3)] Property");
(4)    …, I (4), being the whole of the land more particularly described in Certificate of Title folio identifier …/… ("[I (4)] Property");
(5)    …, I (5), being the whole of the land more particularly described in Certificate of Title …/… ("[I (5)] Property");
(6)    …, I (6), being the whole of the land more particularly described in Certificate of Title …/… ("[I (6)] Property").
(hereinafter referred to as the "Investment Properties")
The listing prices for the Investment Properties shall be as agreed between the parties and if there is no agreement within 14 days in respect of the listing price of any of the Investment Properties the listing price for the subject property shall be as advised by a valuer nominated by the parties, or failing agreement as to a valuer within 7 days, by a valuer nominated by the President of the Real Estate Institute of Western Australia or his/her equivalent in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties, with the Husband to pay the costs of any such valuations and the Wife's share of half of these costs to be paid to the Husband from the proceeds of sale of each of the Investment Properties and the following further action shall be taken by each of the parties to effect these sales:
16.1Each of the Investment properties shall be listed for sale by private treaty with real estate agents as agreed by the Husband and the Wife and failing such agreement within 14 days of the date of these orders, by real estate agents nominated by the President of the Real Estate Institute of Western Australia, or his/her equivalent, in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties;
16.2 In the event that any of the Investment Properties have not been sold by or before a date three (3) months from the date of these orders, then the Husband and the Wife shall do all acts and things and sign all such documents necessary to procure a sale by public auction of the each of the Investment Properties with such auctions to be upon the following terms:
(a)The parties are to retain the services of an auctioneer to auction each of the Investment Properties by public auction at the earliest possible date but not later than six (6) weeks from the expiration of three (3) months from the date of these orders;
(b)The reserve price shall be as agreed upon by the parties, or failing agreement after 14 days, in accordance with order 16 above;
(c)The parties shall execute all documents requested by the real estate agents and/or auctioneers for the sale of the said properties;
(d)The Husband shall pay to the auctioneers and/or real estate agents any sums requested for the advertising expenses or any other expenses in relation to the said auctions, the Wife to refund to the Husband such costs upon sale;
(e)The parties shall co-operate in every way with the real estate agents and/or auctioneers in relation to the auctions of the said Investment Properties including but not limited to providing all keys necessary to obtain entry to the said properties;
(f)The parties shall attend each of the auctions and negotiate with the highest bidders in the event of the reserve price not being reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(g)The parties shall execute any contracts of sale;
(h)The parties shall execute all other documents necessary to complete the sales;
(i)In the event that any of the Investment Properties is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the Husband and the Wife shall do all acts and things and sign all necessary documents and the Husband shall pay all moneys necessary to procure a second auction within a further five (5) weeks of the date of the first auction, at a reserve price ten percent (10%) less than the reserve price of the first auction, otherwise the auction shall be upon the same terms and conditions as applied to the first auction.
16.3Upon completion of each sale of each of the Investment Properties in accordance with paragraphs 2.1 and 2.2, the proceeds of the sale be applied as follows:
(a)firstly, to discharge the following mortgage(s)
i.…57 to National Australia Bank (the “[I (1) property] mortgage”);
ii.…58 to National Australia Bank (the “[I (2) property] mortgage”);
iii.…96 to National Australia Bank (the “[I (3) property] mortgage”);
iv.…98 to National Australia Bank (the “[I (4) property] mortgage”);
v.…52 to National Australia Bank (the “[I (5) property] mortgage”); and
vi.…50 to National Australia Bank (the “[I (6) property] mortgage”); and
vii.any other encumbrances affecting the E Investment Property or the N Investment Property;
(b)secondly, to pay all costs, commissions and expenses of the sale including the repayment of costs of any valuations and auction expenses advanced by either party and to pay any council and water rates and maintenance levies outstanding in respect of each of Investment Properties;
(c)thirdly, in the payment of any unpaid:
i)Costs of sale of the E Investment Property, if any;
ii)Costs of sale of the N Investment Property, if any;
(d)fourthly, in the payment of any unpaid capital gains tax liability of the parties associated with the sales of the investment properties listed in order 16 above or with the sales of the E or N investment properties;
(e)fifthly, in repayment to the husband of any moneys paid or owed by him in meeting the obligations imposed on him pursuant to orders 1 and 2 above;
(f) Sixthly, in payment of the balance to the wife.
That, forthwith, the wife do all things necessary to resign as director and/or office-holder of Parsin Group Pty Limited (ACN …) (“[Parsin] Group”) and/or of P International Pty Limited (ACN …) (“[P International]”) and transfer the whole of her shareholding in Parsin Group and P International to the husband or to his nominee or nominees.
That, within fourteen days of the making of this order, the wife provide to the husband, via his solicitor, originals or copies of all financial statements, records or documents relating to Parsin Group and P International that are presently in the possession of the wife.
That, forthwith, the husband indemnify and keep indemnified the wife in respect of all liability arising in connection with Parsin Group and/or P International which the wife may have whether now or in the future and whether alone, jointly or severally with the husband and/or with any other person and/or company including, without limiting the forgoing:
(a)liability to Parsin Group or to P International under any loan account;
(b)liability to any creditor pursuant to any guarantee or indemnity;
(c)liability arising in respect of any lease; or
(d)any taxation or taxation-related liability, fine, interest or penalty.
That, forthwith, the husband do all things necessary to transfer to the wife any interest he may have in the Honda vehicle registered … (the “Honda”).
That, upon and from transfer of the husband’s interest in the Honda, the wife indemnify and keep indemnified the husband in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Honda including all payments and charges due under any relevant encumbrance.
That, forthwith, the wife do all things necessary to transfer to the husband any interest she may have in the Mazda vehicle registered … (the “Mazda”).
That, upon and from transfer of the wife’s interest in the Mazda, the husband indemnify and keep indemnified the wife in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Mazda including all payments and charges due under any relevant encumbrance.
That, as soon as is practicable, both parties do all things necessary to provide to the other party or to the other party’s nominee all available photographs, negatives, home movie films or videos relating to the period since 1982 and to equally and promptly meet the cost of copying those items or such of those items as are selected by the other party.
That, forthwith, both parties do all things necessary to remove obligations and signing and other rights and responsibilities of the wife from the following accounts:
viii.National Australia Bank account …45;
ix.National Australia Bank account …03;
x.National Australia Bank account …35;
xi.National Australia Bank account …24;
xii.National Australia Bank account …32;
xiii.National Australia Bank account …13;
xiv.National Australia Bank account …94;
xv.National Australia Bank account …99;
xvi.National Australia Bank account …14; and
xvii.National Australia Bank account …10.
That within thirty days of the date of these orders or such further time as the parties agree the husband and wife do all things and sign all documents necessary to cause Parsin Group Pty. Limited as the trustee of the Parsin Superannuation Fund to roll-over the wife’s interest in that fund to a fund nominated by her.
That, except as otherwise provided herein, each party respectively be and remain entitled to the exclusion of the other to all property (including respective superannuation entitlements, respective bank deposits, respective listed and unlisted shareholdings, the husband’s leave entitlements and the husband’s whole of life insurance policy) now in that party’s possession, control or name.

That, except as otherwise provided herein, each party be and remain solely responsible in relation to any and all liabilities (including respective loans from friends and family and respective credit card liabilities) presently in the name of each of them respectively.
That the parties do all things and execute all documents and instruments necessary to give effect to this order.
That, if any party refuses or neglects to sign (within fourteen days of a written request to so do) any documents necessary to give effect to the terms of this order, the Registrar of the Sydney Registry of the Family Court of Australia be hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of any or either party as are necessary to give effect to this order.
The operation of these orders is stayed until 4.00 pm on 20 December 2007 and leave is granted to both parties to re-list these proceedings by arrangement with each other and the Associate to Judicial Registrar Loughnan in relation to the form or implementation of these orders or in relation to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3495 of 2006

MS PARSIN

Applicant

And

MR PARSIN

Respondent

REASONS FOR JUDGMENT

After a marriage of more than 30 years the parties cannot agree on a settlement of their property.

Applications

The form of the orders sought by the wife was not available at the commencement of the hearing, nor at the conclusion of the hearing. On 16 November 2007 junior counsel for the wife emailed the following document to my associate. Thus the wife seeks the following orders:
REVISED
AMENDED
FINAL ORDERS SOUGHT BY THE APPLICANT WIFE:
1.Transfer of [the T property] and [the K property] to the Wife:
1.1That within 30 days of the date of these orders, the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife all of his right title and interest in the real property situate at and known as [the T property], being the whole of the land more particularly described in Certificate of Title […/…] ("Former Matrimonial Home") free of all encumbrances;
1.2That within 30 days of the date of these orders, the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife all of his right title and interest in the real property situate at and known as [the K property], being the whole of the land more particularly described in Certificate of Title […/SP…] ("[K] Property");
2.Sale of all other real properties ("Investment Properties"):
2.1That within 30 days of the date of these orders, the Husband and the Wife do all such acts and things and sign all such documents as may be required to sell the following properties for sale by private treaty:
2.1.1[The I (1) property], being the whole of the land more particularly described in Certificate of Title […/SP…] ("[I (1)] Property");
2.1.2[The I (2) property], being the whole of the land more particularly described in Certificate of Title […/SP…] ("[I (2)] Property");
2.1.3[The I (3) property], being the whole of the land more particularly described in Certificate of Title folio identifier […/…] ("[I (3)] Property");
2.1.4[The I (4) property], being the whole of the land more particularly described in Certificate of Title folio identifier […/…] ("[I (4)] Property");
2.1.5[The I (5) property], being the whole of the land more particularly described in Certificate of Title […/…] ("[I (5)] Property");
2.1.6[The I (6) property], being the whole of the land more particularly described in Certificate of Title […/…] ("[I (6)] Property").
(hereinafter referred to as the "Investment Properties")
2.2The listing prices for the Investment Properties shall be as agreed between the parties and if there is no agreement within 14 days in respect of the listing price of any of the Investment Properties the listing price for the subject property shall be as advised by a valuer nominated by the parties, or failing agreement as to a valuer within 7 days, by a valuer nominated by the President of the Real Estate Institute of Western Australia or his/her equivalent in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties, with the Husband to pay the costs of any such valuations and the Wife's share of half of these costs to be paid to the Husband from the proceeds of sale of each of the Investment Properties and the following further action shall be taken by each of the parties to effect these sales:
2.2.1Each of the Investment properties shall be listed for sale by private treaty with real estate agents as agreed by the Husband and the Wife and failing such agreement within 14 days of the date of these orders, by real estate agents nominated by the President of the Real Estate Institute of Western Australia, or his/her equivalent, in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties;
2.2.2In the event that any of the Investment Properties have not been sold by or before a date three (3) months from the date of these orders, then the Husband and the Wife shall do all acts and things and sign all such documents necessary to procure a sale by public auction of the each of the Investment Properties with such auctions to be upon the following terms:
(a)The parties are to retain the services of an auctioneer to auction each of the Investment Properties by public auction at the earliest possible date but not later than six (6) weeks from the expiration of three (3) months from the date of these orders;
(b)The reserve price shall be as agreed upon by the parties, or failing agreement after 14 days, as per paragraph 2.2 herein;
(c)The parties shall execute all documents requested by the real estate agents and/or auctioneers for the sale of the said properties;
(d)The Husband shall pay to the auctioneers and/or real estate agents any sums requested for the advertising expenses or any other expenses in relation to the said auctions, the Wife to refund to the Husband half of such costs upon sale;
(e)The parties shall co-operate in every way with the real estate agents and/or auctioneers in relation to the auctions of the said Investment Properties including but not limited to providing all keys necessary to obtain entry to the said properties;
(f)The parties shall attend each of the auctions and negotiate with the highest bidders in the event of the reserve price not being reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(g)The parties shall execute any contracts of sale;
(h)The parties shall execute all other documents necessary to complete the sales;
(i)In the event that any of the Investment Properties is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the Husband and the Wife shall do all acts and things and sign all necessary documents and the Husband shall pay all moneys necessary to procure a second auction within a further five (5) weeks of the date of the first auction, at a reserve price ten percent (10%) less than the reserve price of the first auction, otherwise the auction shall be upon the same terms and conditions as applied to the first auction.
2.3Upon completion of each sale of each of the Investment Properties in accordance with paragraphs 2.1 and 2.2, the proceeds of the sale be applied as follows:
2.3.1firstly, to discharge the mortgage(s) and any other encumbrances affecting:
i)the [E] Investment Property and the [N] Investment Property;
ii)the (6) Investment Properties, excluding the [K] Investment Property; and
ii)        the Former Matrimonial Home;
2.3.2.secondly, to pay all costs, commissions and expenses of the sale including half the costs of any valuations and auction expenses to the Husband that may be payable and to pay any council and water rates and maintenance levies outstanding in respect of each of Investment Properties;
2.3.3thirdly, in payment of the following liabilities of the Wife:
i)         Monies owing to [Ms C] in the sum of $28,000;
ii)        Monies owing to [Mr M Parsin] in the sum of $7,000;
iii)      Monies owing to [Mr B Parsin] in the sum of $20,410;
iv)       Monies owing to [Mr V] in the sum of $3,200;
v)        Wife's credit card debt in the sum of $3,000;
2.3.4fourthly, in the payment of the additional joint liabilities of the parties:
i)Costs of sale of the [E] Investment Property, if any;
ii)Costs of sale of the [N] Investment Property, if any;
2.3.5.fifthly, in the payment of any capital gains tax liability of the parties;
2.3.6 sixthly, the balance to the Wife and Husband to bring the division of the net martial asset pool to a percentage division of 65% to the Wife and 35% to the Husband.
2.3.7 seventhly, in the event of and deficit the Husband be solely liable and indemnify the Wife and keep her indemnified in relation thereto;
3.1.That, upon and from the transfer of the Husband's interest in the [K] Property pursuant to these orders, the Wife indemnify and keep indemnified the Husband against all payments and liability pursuant to any mortgage registered against the [K] Property.
3.2That the Wife transfer all of her right title and interest in the [F Limited] shares held in her name to the Husband.
3.3[PARSIN] SUPERANNUATION FUND
3.3.1That the superannuation interest dealt within this Order is the interest of the Wife in [Parsin] Superannuation Fund (''the Fund") being a Self Managed Fund the trustee of which is [Parsin] Group Pty. Limited (''the Trustee") and the entitlements of the Husband and the Wife in the said Fund are not a percentage interest only.
3.3.2That the Husband and the Trustee shall forthwith do all necessary acts and things, sign all documents, attend all meetings and give all directions and consents necessary to give force and effect to this Order.
3.3.3That paragraphs 3.3.2 and 3.3.4 to 3.3.10 (inclusive) of this Order are binding on the Trustee of the Fund.
3.3.4That the amount allocated to the Husband in these proceedings out of the interest of the Wife in these proceedings in the Fund is one hundred percent (100%) of the Wife's interest in the Fund as at the date of this Order.
3.3.5That the specified percentage that is to apply for the purposes of s 90MT(1) (b) is one hundred percent (100%) being the whole amount of the Wife's interest in the Fund as at the date of this Order.
3.3.6That one hundred percent (100%) of the Wife's interest in the Fund is to be added to the existing Member Account of the Husband with the said Fund.
3.3.7That one hundred percent (100%) of the Wife's interest in the Fund is to be deducted from the existing Member Account of the Wife with the said Fund.
3.3.8That paragraphs 3.3.4, 3.3.5, 3.3.6 and 3.3.7 shall have effect from the operative time.
3.3.9That the operative time for the purpose of paragraph 3.3.8 of this Order is four (4) business days from the date of service of this order upon the Trustee of the Fund.
3.3.10That the Trustee of the Fund shall in accordance with the obligations set out under the Act and Regulations do all acts and things and sign all documents necessary to administer and record the entitlement of the Husband in the Fund.
3.3.11That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest and Order 3.4 herein.
3.4That simultaneously upon parties and the Trustee's full compliance with paragraphs 3.3.1 to 3.3.10 (inclusive) the Husband shall forthwith pay to the Wife's solicitors, Owen Hodge Lawyers for and on behalf of the Wife, by bank cheque, a sum equivalent in value to the whole of the interest of the Wife in the Fund as at the date of these Orders.
4.        Sale of [the E property] and [the N property]:
4.1That the net proceeds of the recent sales of the properties known as [the E property] being the whole of the land comprised in certificate of title folio identifier […/SP…] ("[The E] Property") and [the N Property] being the whole of the land comprised in certificate of title folio identifier […/…] ("[The N] Property"), if any, be paid in reduction of the liabilities of the parties to National Australia Bank as at the date of these orders, together with any interest, costs and charges payable thereon.
5.        Transfer of companies:
5.1That simultaneously with the Husband complying fully with orders 1 and 2 herewith the Wife do all acts and things and sign all documents necessary to resign as Director and/or Officeholder of [Parsins] Group Pty Limited ("[Parsins] Group"), and [P] International Pty Limited ("[P International]") and transfer the whole of her right title and interest in her shareholding in both companies to the Husband.
5.2That, forthwith, the Husband indemnify and keep indemnified the Wife in respect of all liability arising in connection with [Parsins] Group and/or [P International] which the Wife may have whether now or in the future and whether alone, jointly or severally with the Husband and/or with any person and/or company including, without limiting the forgoing:
5.2.1Liability to [Parsins] Group or [P International] under any loan account;
5.2.2    Liability to any creditor pursuant to any guarantee or indemnity;
5.2. 3   Liability arising in respect of any lease; or
5.2.4Any taxation or taxation-related liability, fine, interest or penalty and any legal costs arising in respect thereto.
6.        Transfer of personal items:
6.1That within 14 days of the making of these orders, the Wife do all things necessary to transfer to the Husband and to make available for collection by the Husband the following items of furniture and personalty:
6.1.1The husband's personal computer located at the [T] Property;
6.1.2    All tools and garden implements;
6.2That within 14 days of the making of these orders, the Husband to do all things necessary to transfer to the Wife:
6.2.1    All frequent flyer entitlements, namely 400,000 points;
6.2.2    The boat and kayaks in his possession at the time of separation.
7.        Indemnity:
7.1      That unless otherwise specified in these orders:
7.1.1Each party be solely entitled to the exclusion of the other to all other property including money, motor vehicles, bank accounts, insurances, equities, superannuation entitlements and personal effects including choses-in-action and superannuation entitlements, in the possession of such party as at the date of these orders the furniture, personal possessions, and like chattels in the Former Matrimonial Home being deemed to be in the possession of the Wife;
7.1.2The Wife is entitled to and shall receive all shares in [F] Limited in her name as referred to in the reports prepared by [E Accountants];
7.1.3Superannuation shall remain the sole property of the member including each parties interest in the Parsin Superannuation Fund;
7.1.4Insurance policies remain the sole property of the owner named in the policies;
7.1.5Each 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.
8.        Restraint on encumbering Investment Properties
8.1That pending the sale of the Investment Properties pursuant to order 2 hereof the Husband shall do no act or thing to cause or procure the selling, charging or mortgaging or encumbering of any nature whatsoever of the Husband's interest in any of the Investment Properties.
9.        That the Husband shall do all acts and things promptly and he shall give all consents and execute all documents in writing promptly that may be necessary to give effect to these orders.
10. That in the event that the Husband or the Wife, for any reason, refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any part of these orders made herein within 3 days of being requested in writing to do so, each party consents to any application being filed by the other party seeking orders pursuant to Section 106A of the Act that a Registrar of the Family Court of Australia be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the orders herein.
11.     That the parties agree that the Registrar of the Court shall be authorised to execute any such necessary document, instrument or writing referred to herein upon being satisfied by affidavit that such refusal, neglect or default, as the case may be, has occurred and the parties further agree that the party whose refusal, neglect or default has necessitated such action being required to be undertaken by the Registrar of the Court shall pay all costs of and incidental to any such action of the other party on an indemnity basis.
12.     Each party have liberty to apply to have this matter re-listed within 48 hours for the purposes of the implementation of any of these orders.
13.     That the Respondent Husband pay the Applicant Wife’s costs of and incidental to this Application.
In accordance with his Amended Response to an Application for Final Orders filed 8 November 2007, the husband seeks:
1.That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as [the E property] being the whole of the land comprised in certificate of title folio identifier […/SP…] (the “[E] property”), the husband assume and retain responsibility for the pending shortfall (approximately $536,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage […]8 to the National Australia Bank secured over the [E] property (the “[E property] mortgage”).
2.That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as [the N property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[N] property”), the husband assume and retain responsibility for the pending shortfall (approximately $28,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage numbered […]2 to National Australia Bank (the “[N property] mortgage”).
3.That, forthwith, the husband assume and retain responsibility concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) under the loan (presently a joint liability of the parties) procured for the purposes of assisting the child of the marriage, Mr B Parsin, represented by National Australia Bank loan account […]1 (to approximately $134,000).
4.That, within thirty days of the making of this order, the husband do all things necessary to prepare and to make available to the wife’s solicitors a transfer to the wife in registrable form of the whole of the husband's right, title and interest in the property known as [the T property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[T] property”).
5.That, within thirty days of the making of this order and in exchange for the transfer prepared pursuant to the above paragraph, the wife provide to the husband’s solicitors written evidence of her ability to procure (in addition to any other refinance obligations that arise from the operation of this order) discharge of registered mortgage […]48 to National Australia Bank (the “[T property] mortgage”) and to refinance as necessary in her own name and without recourse to the husband’s name (the “discharge evidence”).
6.That, upon and from transfer of the husband's interest in the [T] property pursuant to this order, the wife indemnify and keep indemnified the husband in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of the [T] property, including all payments due under the [T property] mortgage and payments due under any other relevant encumbrance secured over the [T] property.
7.That, upon transfer of the husband’s interest in the [T] property pursuant to this order, the wife, forthwith, do all acts and things necessary to procure discharge of the [T property] mortgage and to refinance borrowings as necessary in her own name and without recourse to the husband’s name.
8.That, should the discharge evidence remain outstanding sixty days after the making of this order (or such longer period as the parties may agree) despite relevant compliance (or readiness to comply) on the part of the husband, the parties shall forthwith do all things to procure that the [T] property be sold by public auction at the earliest practicable date and, in particular, shall:
(q)place the property with the office of L J Hooker situated closest to the [T] property (or such other auctioneers as may be agreed between the husband and the wife) (hereinafter called “the auctioneers”) for auction at the earliest practicable date;
(r)execute all documents requested by the auctioneers for the sale of the property;
(s)request the auctioneers to recommend a reserve price to be placed on the property for the purpose of the auction sale and to accept such recommended reserve price;
(t)pay to the auctioneers any sums requested for advertising expenses in relation to the auction;
(u)attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(v)execute contracts for sale;
(w)cooperate in every way with the auctioneers in relation to the auction of the [T] property; and
(x)execute all other documents necessary to complete the auction sale.
9.That, if the above paragraph becomes operative, the parties do all things necessary to procure that, upon completion of the auction sale of the [T] property, the proceeds of sale shall be paid in the following manner and priority:
(a)in payment of the amount required to discharge the [T property] mortgage and any other relevant encumbrance secured over the [T] property;
(b)in payment of agent's commission and auction expenses (if any) due upon the sale;
(c)in payment of legal costs;
(d)in payment of the balance to the wife.
10.That, within sixty days of the making of this order, the wife do all things necessary to transfer to the husband the whole of the wife’s right, title and interest in the properties known as:
(a)[The K property] being the whole of the land comprised in certificate of title folio identifier […/SP…] (the “[K] property”).
(b)[The I (1) property] being the whole of the land comprised in certificate of title folio identifier […/SP…] (the “[I (1)] property”).
(c)[The I (2) property] being the whole of the land comprised in certificate of title folio identifier […/SP…] (the “[I (2)] property”).
(d)[The I (3) property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[I (3)] property”).
(e)[The I (4) property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[I (4)] property”).
(f)[The I (5) property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[I (5)] property”).
(g)[The I (6) property] being the whole of the land comprised in certificate of title folio identifier […/…] (the “[I (6)] property”).
11.That, upon and from transfer of the wife’s interest in each of the properties listed in sub-paragraphs (a) to (g) of the above paragraph (the “country properties”), the husband indemnify and keep indemnified the wife in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of each of those properties including all payments due under respective registered mortgages:
(a)[…]9 to National Australia Bank (the “[K property] mortgage”);
(b)[…]57 to National Australia Bank (the “[I (1) property] mortgage”);
(c)[…]58 to National Australia Bank (the “[I (2) property] mortgage”);
(d)[…]96 to National Australia Bank (the “[I (3) property] mortgage”);
(e)[…]98 to National Australia Bank (the “[I (4) property] mortgage”);
(f)[…]52 to National Australia Bank (the “[I (5) property] mortgage”); and
(g)[…]50 to National Australia Bank (the “[I (6) property] mortgage”).
12.That, upon transfer of the wife’s interest in each of the country properties pursuant to this order, the husband, forthwith, do all acts and things necessary to procure discharge of the each of respective corresponding mortgages listed in sub-paragraphs (a) to (g) of the above paragraph and to refinance borrowings as necessary in his own name and without recourse to the wife’s name.
13.That, forthwith, the wife do all things necessary to resign as director and/or office-holder of [Parsin] Group Pty Limited (ACN […]) (“[Parsin] Group”) and/or of [P] International Pty Limited (ACN […]) (“[P International]”) and transfer the whole of the wife’s shareholding in [Parsin] Group and [P International] to the husband or to his nominee or nominees.
14.That, within fourteen days of the making of this order, the wife provide to the husband, via his solicitor, originals or copies of all financial statements, records or documents relating to [Parsin] Group and [P International] and all records concerning rental properties that are presently in the possession of the wife.
15.That, forthwith, the husband indemnify and keep indemnified the wife in respect of all liability arising in connection with [Parsin] Group and/or [P International] which the wife may have whether now or in the future and whether alone, jointly or severally with the husband and/or with any other person and/or company including, without limiting the forgoing:
(e)liability to [Parsin] Group or to [P International] under any loan account;
(f)liability to any creditor pursuant to any guarantee or indemnity;
(g)liability arising in respect of any lease; or
(h)any taxation or taxation-related liability, fine, interest or penalty.
16.That, forthwith, the husband do all things necessary to transfer to the wife any interest he may have in the Honda vehicle registered […] (the “Honda”).
17.That, upon and from transfer of the husband’s interest in the Honda, the wife indemnify and keep indemnified the husband in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Honda including all payments and charges due under any relevant encumbrance.
18.That, forthwith, the wife do all things necessary to transfer to the husband any interest she may have in the Mazda vehicle registered […] (the “Mazda”).
19.That, upon and from transfer of the wife’s interest in the Mazda, the husband indemnify and keep indemnified the wife in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Mazda including all payments and charges due under any relevant encumbrance.
20.That the parties do all things reasonably necessary to procure that furniture and household items presently located within the [T] property (the “furniture”) be divided by agreement in the ratio fifty percent (to the wife) and fifty percent (to the husband) and, if such agreement is not reached within thirty days of the making of this order:
(a)that, within forty days of the making of this order, the wife do all things necessary to prepare two lists of furniture so that the value of the items contained in each list be approximately equal;
(b)the wife transfer to the husband all of the wife’s right, title and interest in the items contained in whichever one of the two lists the husband shall choose and shall make such items available to the husband or to his nominee at any reasonable time the husband requests and shall properly store and maintain such items pending such collection;
(c)that the husband transfer to the wife all of the husband’s right, title and interest in the items contained in the remaining list and shall make such items available to the wife or to her nominee at any reasonable time the wife requests and shall properly store and maintain such items pending such collection.
21.That, forthwith, the husband do all things reasonably necessary to transfer to the wife the whole of his right, title and interest in the loan (the asset loan) made to the child of the marriage, Mr B Parsin (to approximately $10,600).
22.That, as soon as is practicable, both parties do all things necessary to provide to the other party or to the other party’s nominee all available photographs, negatives, home movie films or videos relating to the period since 1982 and to equally and promptly meet the cost of copying those items or such of those items as are selected by the other party.
23.That, forthwith, both parties do all things necessary to remove obligations and signing and other rights and responsibilities of the wife from the following accounts:
(a)National Australia Bank account […]45;
(b)National Australia Bank account […]03;
(c)National Australia Bank account […]35;
(d)National Australia Bank account […]24;
(e)National Australia Bank account […]32;
(f)National Australia Bank account […]13;
(g)National Australia Bank account […]94;
(h)National Australia Bank account […]99;
(i)National Australia Bank account […]14; and
(j)National Australia Bank account […]10.
24.That, forthwith, the wife be restrained from accessing or using any of the accounts listed in the above paragraph and that she repay any funds accessed in this way since 6 November 2007 forthwith.
25.That, forthwith, each party indemnity and keep indemnified each against any and all liability to the indemnifying party’s parents and/or siblings.
26.That, except as otherwise provided herein, each party respectively be and remain entitled to the exclusion of the other to all property (including respective superannuation entitlements, respective bank deposits, respective listed and unlisted shareholdings, the husband’s leave entitlements and the husband’s whole of life insurance policy) now in that party’s possession, control or name.
27.That, except as otherwise provided herein, each party be and remain solely responsible in relation to any and all liabilities (including respective loans from friends and family and respective credit card liabilities) presently in the name of each of them respectively.
28.That each party release the other from all other actions, claims, disputes, demands, proceedings, liabilities and costs which each might have against the other.
29.That the parties do all things and execute all documents and instruments necessary to give effect to this order.
30.That, if any party refuses or neglects to sign (within fourteen days of a written request to so do) any documents necessary to give effect to the terms of this order, the Registrar of the Sydney Registry of the Family Court of Australia be hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of any or either party as are necessary to give effect to this order.

Short History

4.The wife and husband are 52 and 54 years of age respectively. They were married in November 1974 and separated on 18 December 2005 or in early 2006. On 20 July 2007 a Decree Nisi of Dissolution of Marriage was pronounced by the Federal Magistrates Court.

Children
5.The parties have four adult children:
Mr L Parsin who was 29 years of age as at the date of the hearing;
Ms J Parsin who was 26 years of age as at the date of the hearing;
Mr B Parsin who was 25years of age as at the date of the hearing; and
Mr M Parsin who was 21 years of age as at the date of the hearing;

Background facts
6.The parties were married in November 1974. The husband was employed in the Finance Sector and the wife was a Student.
7.In 1975 the wife commenced working full time as a Teacher. She deposited her wages in an account in the husband's name. The parties purchased an investment property at Q for $27,000.
8.L Parsin was born in 1978.
9.In 1979 the husband commenced work full time in the Finance Sector. The parties sold the Q property.
10.In 1979 the parties purchased their first home at H for $77,000 with a deposit of $24,000 and the balance by way of mortgage.
11.J Parsin was born in 1981.
12.B Parsin was born in 1982.
13.In 1985 the wife consulted Dr. U in relation to neck pain.
14.In 1986 M Parsin was born.
15.In 1986 the wife noticed swelling of her knees and her knees later collapsed. She consulted 2 different rheumatologists including Dr. R.
16.The parties purchased an investment property at G for about $50,000. The whole of the purchase monies were borrowed.
17.From 1986-88 the wife experienced swelling, pain and loss of strength in her knees and elbows and in most of the joints of her body including ankles, wrists, toes, fingers, hips and back. She spent most of the time in bed. She was hospitalised for 2 weeks. Dr. R drained fluid from the wife's knees and gave her cortisone injections. This continued for over one year. Dr. R arranged for a home care provider to attend the wife's home for 5 days a week for 3 months.
18.In 1987 the wife began to experience swelling, redness, loss of vision and constant pain with her eyes. She consulted Dr. F, Ophthalmologist and commenced to use cortisone and antibacterial ointment. The symptoms reduced after one year but they continue to some extent to this day. The wife also began to experience significant loss of hearing in her right ear and underwent ear surgery. The wife currently experiences loss of hearing and ringing in both ears.
19.In 1988 the H property was sold for $195,000 and the parties purchased the O property for $335,000. The O property became the family home.
20.In 1989 the husband received the sum of $50,000 from his employer, when it was acquired by PD Company.
21.In 1989 the parties purchased an investment property at Y.
22.In 1990 the husband was made redundant from PD Company and received a redundancy payment of approximately $100,000. The husband remained unemployed for approximately 12 months. The whole family travelled to live in Hawaii for 3 months to allow husband and wife to attend a course regarding Christian principles and personal growth.
23.In 1991 the husband commenced a business called Parsin Pty Ltd. later known as the Parsins Group Pty Limited. The husband and wife were equal shareholders. This was a consultancy business for Government grants and subsidies and was run from the O Home. The wife assisted with administrative tasks for a few hours each week until 1999 when the business moved to an office in the Y area.
24.In 1992 the Y Investment Property was sold for approximately $215,000.
25.In 1993 the parties caused the construction of a two-bedroom unit at the O Home. Parsins Group later occupied those premises in 1995 when it moved to the Y office.
26.In 1994 the parties purchased an investment property at SR. The property was purchased for an amount of $165,000 in the name of the Parsin Pty Limited. The property is currently owned by the Parsins Group.
27.In 1995 the parties purchased the property adjoining their O Home in the name of P International Pty Ltd, for $250,000.
28.In 1997 the wife commenced a full time course, studying Counselling.
29.In 1998 the adjoining O property was sold for $265,000.
30.In 1998 the parties purchased a commercial property in Y. The property was purchased for $320,000 in the name of P International and was purchased as a business premises for the Parsins Group.
31.In 1998 the parties purchased a property at J, The property was purchased for $140,000 in the name of Parsin Pty Limited. The property is currently owned by the Parsins Group.
32.The wife asserts that she attended the Y office 3 days per week, doing administrative tasks for 9 months then undertook that work for 8 hours per week, from home. The husband disputes the extent of the wife’s involvement.
33.In 2001 the G Investment Property was sold for about $200,000.
34.In 2003 the parties purchased an investment property at N for $660,000. The purchase moneys were obtained from the National Australia Bank. The property is currently under contract for sale.
35.In 2003/2004 the wife experienced problems with glands in her neck including swelling, intense pain as well as loss of saliva, dry mouth and discomfort when eating and pain in her jaw. She was treated with antibiotics for 6 months. She consulted an Oral and Maxillofacial Surgeon. She was treated with 3 different types of antibiotics. The symptoms have reduced but the wife still experiences problems with her glands and jaw to date.
36.In 2004 the parties purchased an investment home unit at E for about $1,625,000, plus stamp duty and legal costs “off the plan” with settlement due on 20 December 2006. They intended to sell the property prior to settlement.
37.The wife commenced work as a study coach, coaching students in Mathematics and English working 5 hours per week. Initially she earned $175.00 gross per week but this fluctuated with demand. The wages were deposited into an account in the husband's name.
38.The wife and her partner, Ms CR, commenced researching investment properties throughout Australia. The wife researched, inspected and purchased 3 investment properties in Western Australia and 4 in Queensland:
i)      The K property;
ii)     The I (1) property;
iii)     The I (2) property;
iv)     The I (3) property;
v)      The I (4) property;
vi)     The I (5) property;
vii)    The I (6) property.

39.In 2005 the parties sold the O home and purchased a home at T ("Former Matrimonial Home"). The wife commenced employment with the Parsins Group doing administrative work 3.5 days per week and was paid a salary of $36,000 per year. Her salary was paid into an account to pay the mortgage on the Former Matrimonial Home.
40.The parties separated on 18 December 2005 or early in January 2006.
41.In January 2006 the wife resigned from her employment with the Parsins Group.
42.In May 2006 she commenced employment as an administrative assistant with X International Pty Ltd. She earned approximately $310 gross per week but resigned in about December 2006.
43.On 14 June 2006 the wife arranged for the transfer of $43,000 from the joint loan account into account No. …39 with the NAB in her name only.
44.On 15 June 2006 the husband withdrew the balance of $49,500 from the joint loan account.
45.On 30 June 2006 the wife re-credited the joint loan account with the NAB with the sum of $34,000.
46.The wife commenced these proceedings by filing her Application for Final Orders on 24 July 2006. In an Application in a Case filed by the wife she sought orders for the appointment of a single expert to value the family companies (2) and parties’ superannuation and for spousal maintenance.
47.On 13 September 2006 a Response to an Application for Final Orders was filed by the husband. Directions were made by Registrar Chayna for the filing of a Response – Form 2A and affidavits and the matter stood over to the Judicial Registrars List on 10 October 2006. A Conciliation Conference was appointed for 8 December 2006.
48.On 3 October 2006 a Response to Application in a Case filed by the husband sought the appointment of one of 3 named single experts and the dismissal of the wife’s spousal maintenance claim.
49.On 10 October 2006 orders were made by consent appointing Mr. GN, Chartered Accountant, as the Single Expert. The wife’s Spousal Maintenance application was stood over to the Conciliation Conference set down to 8 December 2006.
50.In December 2006 the wife ceased work with X International Pty Ltd. She received an invoice from the Australian Taxation Office stating she had a liability of $46,893. The wife withdrew funds from the joint loan account with the National Australia Bank in the sum of $31,393 and further borrowed the sum of $15,500 to pay this liability.
51.In December 2006 the Conciliation Conference was adjourned to 20 February 2007, by consent, pending the receipt of the single expert’s report.
52.On 18 December 2006 the wife commenced full time employment as an Administrative Assistant, earning $799.00 gross per week.
53.On 18 December 2006 the NAB sent a letter to the parties setting out the conditions applying to the provision of continuing finance for the property purchased at E in the sum of $1,700,000, including the requirement for reduction of indebtedness to NAB of $700,000 by March 2007.
54.On 19 February 2007 the first report was received from the single expert, Mr. GN.
55.On 20 February 2007 the Conciliation Conference was held. The matter did not resolve and a Pre-Trial Conference was set down for 7 August 2007.
56.On 12 March 2007 an Application in a Case was filed by the wife. She sought the sale of the N Investment Property to reduce the indebtedness to the NAB in accordance with the conditions of the loan agreement. She sought that the balance of the sale proceeds be placed in a controlled monies account in the names of the parties.
57.The wife’s solicitors addressed further questions to the single expert, Mr. GN in relation to his report of 19 February 2007 pursuant to Rule 15.65.
58.On 19 March 2007 the wife’s Application in a Case was heard. The husband filed a Response seeking the appointment of a mediator. The following orders made, inter alia:
1.This matter adjourned to the Judicial Registrar’s List at 9:30 a.m. on Tuesday, 17^th April 2007.
2.The Respondent to file any Response and any documents in support within 7 days.
3.I give leave to have this matter re-listed on 48 hours notice to the other party.

59.In late March 2007 the wife resigned from her employment as an administrative assistant. She subsequently, resumed working with that employer only 15 hours per week, earning on average, $260 gross per week.
60.On 17 April 2007 the matter was mentioned, by consent, by the solicitor for the husband. The matter was stood over to 18 May 2007 to allow the husband to file an Application for Expedition. No such application was filed.
61.On 18 April 2007 there was an informal settlement conference in respect of final proceedings for property settlement. The matter did not resolve.
62.On 19 April 2007 a Letter of Demand issued from the NAB advising of intention to commence legal recovery action and to issue formal demands in respect of the defaults. The NAB advised that two other loan accounts would not be renewed on their expiry on 31 May 2007. The parties and their legal representatives attended an informal settlement conference at the office of the solicitor for the husband. The matter did not resolve.
63.On 18 May 2007 Registrar Campbell ordered:
1. Matter stood over to Tuesday, 19 June 2007 at 11:00 a.m.
2. Reserve the question of costs of today.

64.On 29 May 2007 the husband told the wife by email, "I have tentative approval for loans to cover all properties, including [the E property] but excluding [the T property]".
65.On 30 May 2007 the parties and their legal representatives attended an informal settlement conference at the chambers of counsel for the wife. There was no resolution.
66.On 14 June 2007 the parties and their legal representatives attended mediation lasting 9 hours. There was no resolution.
67.On 19 June 2007 Registrar Chayna dealt with an Amended Application in a Case filed by the wife seeking the sale of further eight (8) Investment Properties, in addition to the N property. The Registrar ordered:
1.Matter set down for hearing in the Duty Judge’s List on Monday, 6 August 2007 at 10:00 p.m.;
2.The Husband to file and serve a Form 2A and any affidavit material on which he seeks to rely by 20 July 2007;
3.Each party to have permission to list the matter before the Judicial Registrar on 48 hours written notice.

68.In July 2007 the wife received coaching work on Saturdays and Tuesdays, earning on average $204 per week. She was successful with an application to take in 2 overseas students receiving $250.00 per week, each, for full board.
69.On 16 July 2007 the wife received at her home two (2) section 57(2) (b) Notices issued by NAB in respect of the N Investment Property and the former matrimonial home dated 3 July 2007 and three (3) Cancellation of Facility Notices in respect of 3 FlexiPlus Mortgage accounts for total amounts in the sum of $101,780.02, $50,456.03 and $1,757,163.52 all dated 3 July 2007.
70.On 17 July 2007 the wife's solicitors wrote to the Family Court seeking to have the matter re-listed in accordance with the Orders of 19 June 2007.
71.On 18 July 2007 the wife's solicitors wrote to the NAB advising that the wife only received the Notices of 3 July on 16 July and advising of the re-listing before the Family Court and the orders being sought. The NAB replied to that letter on the same day, saying that it would not defer its legal action.
72.On 19 July 2007 the wife's solicitors wrote to the solicitors for the husband advising of the request made to the Court to have the matter re-listed, advising why the wife was not prepared to enter into re-financing arrangements proposed by the husband on the previous day, that the wife would be proceeding to seek orders for the sale of all Investment Properties but seeking full and complete details of husband's proposed re-financing arrangements, for the properties by 5 pm, Friday, 20 July 2007. It is the wife’s case that the husband did not provide those details.
73.A further letter was sent to the Court by the wife’s solicitors seeking action on the letter of 17 July 2007.
74.On 20 July 2007 a Decree Nisi of Dissolution of Marriage was pronounced by the Federal Magistrates Court.
75.On 26 July 2007 the husband's solicitors wrote to the NAB again, advising that the parties had agreed to list the N and E properties for sale by auction, that the husband was forwarding a proposal for re-financing to the wife but that the wife intended to proceed with the sale of the remaining investment properties.
76.On 31 July 2007 the NAB replied to the letter of 26 July 2007 from the wife’s solicitors stating that the Bank was not prepared to defer legal action, that more section 57(2) (b) Notices would be served shortly and seeking sealed copies of proposed orders in relation to the auction sale of the N and E properties and requesting a formal written proposal.
77.On 3 August 2007 the wife's solicitors wrote again to the husband's solicitors noting that the husband's affidavits were ordered to be filed by 20 July 2007, requesting a response to the letter dated 19 July 2007, requesting details of the husband's proposed re-financing arrangements, noting agreement to the sale of the N and E properties by auction and advising that, because of husband's failure to provide details requested and proposed action by NAB, the wife was proceeding with the application for sale of the remaining Investment Properties (7) on 6 August 2007.
78.On 4 August 2007 the wife made payment of $12,000 on the mortgage on the Former Matrimonial Home having borrowed these monies from the parties’ daughter, Ms J Parsin.
79.On 6 August 2007 the wife filed an Amended Application for Final orders and her Application in Case to sell 9 Investment Properties came before Le Poer Trench J and was not reached. The Application in a Case was stood over to 23 August 2007 before Judicial Registrar Johnston.
80.On 23 August 2007 the wife's Application in a Case to sell 9 Investment Properties was heard by Judicial Registrar Johnston. The orders made included:
1.Sale by public auction of the [E] Investment Property;
2.Sale by public auction of the [N] Investment Property;
3.Substantive proceedings listed for hearing for 2 days on 8 and 9 November 2007;
4.Affidavits in chief and financial statements to be filed not later than 16 October 2007;
5.Proceedings listed for readiness check on 1710.2007;
6.These proceedings adjourned to 11am on 10.9.2007 part heard.

81.On 10 September 2007 the proceedings adjourned from 23 August 2007, being the wife's application for sale of the remaining Investment Properties (7) came before Judicial Registrar Johnston. In view of substantive hearing being set down for 8 November 2007, orders 1, 2 & 3 were made by consent, inter alia:
1.Husband to remain responsible for, and meet, all “top-up costs” for the 7 Investment Properties;
2.That in event substantive proceedings remain uncompleted as at 9.11.2007, parties to sell [the I (6)] Property;
3.Husband and Wife to provide each other solicitors with rental and expense records re Investment Properties;
4.All costs reserved;
5.Leave to re-list on 48 hours notice.

82.On 17 October 2007, at the readiness hearing, the orders made by me included:
1. I exclude from evidence the report of Dr. [N];
2. I order that the parties agree upon the appointment of an expert who is able to provide evidence for a report as to the capacity of the Wife to assume full time employment as a teacher in the future;
3. I give leave to the parties to immediately jointly instruct that expert and for the Wife to attend upon that expert;
4. In the event of any issue arising, I give leave to restore the matter urgently before me on 24 hours notice to my associate;
5. By consent, order the solicitor for the Wife to provide the solicitor for the Husband a list of the documents provided to Mr. [GN];
6. Note the parties agree to accept the mid-range values of the Red Book values for the motor vehicles;
7. In the event that the parties do not agree on capital gains tax within 48 hours, they are jointly to direct the single expert, Mr. [GN] to undertake this valuation;
8. Give liberty to restore on 48 hours notice;
9. Case Outline documents to be filed 48 hours before the hearing;
83.On 23 October 2007 the matter was re-listed by the wife' solicitors on a dispute as to appointment of medical specialist as single expert. The orders made included:
1. Note that the parties have agreed on the appointment of Dr. [Z] as the single expert;
2. Reserve the question of costs;
84.On 27/28 October 2007 the wife travelled to Queensland to attend the auction of the E Investment Property. The husband did not attend the auction. The N Investment Property was withdrawn from the auction due to an earlier sale. Contacts for sale were subsequently exchanged on both properties, with E Investment Property at $1.2 million and the N Investment Property at $742,000.

85.On 2 November 2007 the wife attended Dr. Z.

Credit and Submissions

The evidence of the witnesses

86.The only witnesses called for cross-examination were the parties. There are some relevant factual disputes and therefore the issue of credit is also relevant. The parties present as very disappointed in each other and they have had a poor relationship for some years. Beyond that fact and the differences of recollection that can arise from recalling facts through the prism of one’s own point of view, they appeared to try and give accurate evidence. Their evidence in cross-examination contained “shots” at each other. For example the husband referred to the wife among other things, as watching television while he renovated properties. The wife could not concede the husband worked long hours because she had on occasions rung him at work at night and there was no answer. This lead to her conclusion that he was engaged in romantic affairs. Neither party was fulsome in making concessions in favour of the other but the wife was more generous in this regard than the husband. The detail of the wife’s evidence contains a number of concessions about non-financial and parent and homemaker contributions. During their written and oral evidence the parties were each prone to highlight their own contributions and to denigrate those of the other. The husband would have it that he made the major financial contribution, made 95% of the non-financial contributions in the form of renovations and repairs and still had time for 25% of the parent and homemaker contribution. That is likely to be an exaggeration. His work commitments (full time employment for virtually the whole of the marriage) and the hours that he applied to renovations (estimated at over 10,000 hours or more than 3 years of 7 days a week @ 8 hours each day) must have restricted the time he had available to him during more than 30 years of marriage.
87.In my view I cannot simply accept all of the evidence of one of the parties and reject all of the evidence of the other. Findings of fact must be made issue by issue.

Submissions

88.The written submissions on behalf of the wife are as follows:
A.       Contribution factors pursuant to s.79(4)(a), (b) & (c) to be relied upon by the Applicant Wife:
1.Direct and indirect financial contributions by the Wife during the marriage and since separation:
a)The Wife worked full time as a teacher for 2 years from 1975 to 1977 prior to the birth of the first child [L] depositing all of her wages into a bank account in the Husband's name (see paragraph 5.1.1 of the Affidavit of the Wife sworn 16 October 2007 ("Wife's affidavit"));
b)During the 1980's the Wife would occasionally assist the Husband by carrying out administrative work for him […] (see para. 5.1.2 of Wife's affidavit);
c)During the 1990's the Wife assisted the Husband by carrying out administrative tasks including formulating a database of clients, putting together newsletters, desktop publishing, word processing and attending to the general overflow of work for [Parsin] Pty Limited, from the Former Matrimonial Home. Later the Wife continued this work from the [Y] Office from 1999 until 2005 with the Wife working approx. 3 days per week (see para. 5.1.3 & 5.1.6 of Wife's affidavit);
d)From 2004 to December 2006, the Wife worked as a study coach at the […] initially for a few hours per week, but this increased to about 10 hours per week within 6 months with the Wife's income being deposited into a joint bank account in the names of the parties (see para.5.1.7 of the Wife's affidavit);
e)In 2005 until January 2006, while still employed at the […], the Wife was employed at [Parsins] Group Pty. Limited ("[Parsins] Group") for three and a half days per week for which she was paid a salary of $36,000.00 per year. This salary was deposited into the parties joint cheque account and used to pay the mortgage on the Former Matrimonial Home (see para. 5.1.8 of Wife's affidavit);
f)Since separation the Wife has carried out a number of repairs to the Former Matrimonial Home which were paid from the monies she earned while employed, or from monies that she has borrowed from friends and family including:
i.       Repair of the garage door;
ii.      Repair of the pool chlorinator;
iii.    Repair of the ducted vacuum system;
iv.     Installation of a sealing strip on external doorways;
v.      Installation of cutlery draws in the kitchen;
vi.     Purchase of a replacement dishwasher; and
vii.    Payment of Natural Gas invoice of $1,000.00 due to faulty pool equipment (see para. 5.1.15 of the Wife's affidavit);

g)        Upon the Husband's tenant vacating the [SR] Investment Property in November 2006 the Wife organised the cleaning, repairing and replacement of missing and broken items and furniture at a cost of $1,098.00. The Husband has never reimbursed the Wife for this cost (see para. 5.1.16 of the Wife's affidavit);
h)        Since separation the Wife has paid monies towards the mortgage on the Former Matrimonial Home:
i.       In May 2006 the Wife was forced to borrow $3,200.00 from her brother and used an additional $200.00 of her own earnings to pay the mortgage (see para. 5.1.17 of the Wife's affidavit);
ii.      On 4 August 2007 the Wife was forced to borrow approx. $12,000 from her daughter, [Ms J Parsin] to pay towards the then overdue mortgage as Husband stopped paying the mortgage (see para. 5.1.23 of the Wife's affidavit);
iii.    In August 2007 the Wife was forced to borrow a further $2,285 from her son, [Mr. B Parsin] to make another payment on mortgage (see para. 5.1.24 of the Wife's affidavit);

i)        The Wife's earnings were used to repay the Husband's mother and the mortgage on the purchase of the [Q] Investment Property, her wages being paid into a joint account for this purpose (see para. 6.2.1 of the Wife's affidavit);
2.        Direct and indirect non-financial contributions by the Wife during the marriage and since separation:
a)        The Wife shared the managing and cleaning of the [Q] Investment Property with the Husband (see para. 6.2.2 of the Wife's affidavit);
b)        During the time the parties owned the [H property], the following renovations and improvements were carried out by the Wife, or were carried out by tradesmen arranged by the Wife:
i.       Together with the Husband, the Wife painted the inside of the home;
ii.      The Wife arranged for new carpet to be installed throughout the house and the Husband and the Wife pulled up the old carpet and all the old nails;
iii.    The Wife arranged for the installation of a new kitchen by tradesmen;
iv.     Together with the Husband, the Wife arranged for the removal of an above ground pool and then filled in the gap in the earth and had grass planted on top;
v.      The Wife painted the new pergola;
vi.     The Wife spent many hours removing the glass from the aluminum frames from the replaced sliding doors and one window on the side of the home so they could be sold for recycling;
vii.    Together with the Husband, the Wife painted all bedrooms and applied wallpaper features;
viii.   The Wife helped with the painting of the timber deck, clearing the yard of debris and organising for the delivery and planting of turf (see para. 6.3.5 & 6.3.7 of the Wife's affidavit);

c)        In the first 3 months after the purchase of the [Y] Investment Property the Wife undertook the following:
i.       Made arrangements and carried out many duties to complete the construction of the property included liaising with contractors to complete the driveway, liaising with contractors to deliver soil, building a retaining wall and landscaping;
ii.      Making curtains for the premises;
iii.    Cleaning the premises; and
iv.     Carrying out various duties required to present the premises for leasing, including advertising and selecting suitable tenants (see para. 6.5.3 of the Wife's affidavit);

d)        After the purchase of the [O property] the following renovations and improvements were carried out by the Wife, or were carried out by tradesmen arranged by the Wife:
i.       The parties constructed a two-bedroom unit attached to the [O property] with the Wife arranging all quotes, choosing the tiles, the carpet, the kitchen and the furnishings (see para. 6.6.3 of the Wife's affidavit);
ii.      The Wife cleaned and maintained this unit from 1995 until 2005, apart for a period of 2 years (see para. 6.6.5 of the Wife's affidavit);
iii.    There was a change of boundaries to the property so that land size was increased to include a third separate carport and extra land in the front with small lawn and garden. This was organised by the Wife with the help of a surveyor (see para. 6.6.6);
iv.     A right of carriageway was altered on the title of the [O property] so that the driveway was owned, and solely used, by [the adjoining O property]. This was organised by the Wife with the assistance of a solicitor (see para. 6.6.6);
v.      Replacement of the breakfast conservatorium. This was carried out by a builder organised by the Wife (see para. 6.6.6);
vi.     Painting of the external areas of the home. This was carried out by a professional painter organised by the Wife (see para. 6.6.6);
vii.    Supply and installation of gas heating to home and pool. A plumber, organised by the Wife, carried this out. The Husband dug the trench to lay the piping, with the assistance of his brother in law (see para. 6.6.6);
viii.   The Wife organised the supply and installation of a new kitchen, including new appliances, designed, manufactured and installed by a kitchen tradesman (see para. 6.6.6);
ix.     The Wife organised for 2 bathrooms to be completely renovated by professional tradesmen (see para. 6.6.6);
x.      The Wife organised for the whole house and the 2 bedroom unit to be re-carpeted by a tradesman. The same tradesmen removed the old carpet and carpet nails (see para. 6.6.6);
xi.     The Wife organised for air conditioning to be installed upstairs by a tradesman (see para. 6.6.6);
xii.    The wife organised for the pergola to be built onto the back of home by a tradesman (see para. 6.6.6);
xiii.     All curtains and blinds were either made by, or bought by, the Wife (see para. 6.6.6);
xiv.   The Wife assisted the Husband with the painting of the inside of the home and later they had assistance from their sons (see para. 6.6.6);
xv.    The Wife assisted with the first repaving of the area around the pool, using the existing pavers, with the Wife transferring pavers and placing sand between them (see para. 6.6.6);
xvi.   The Wife assisted the Husband in replacing the retaining wall and re-doing the garden with a feature (see para. 6.6.6);
xvii.    The Wife, together with the whole family assisted in the upgrade of the driveway gardens (see para. 6.6.6);

e)        The Wife undertook the management of the [SR] Investment Property one year after purchase including advertising for holiday letting, collecting rent, organising keys, organising all general maintenance and cleaning until November 2006 (see para. 6.7.3);
f)        From 3 years after its purchase in 1998, the Wife, until shortly after separation, managed the [J] Investment property when it was leased during holidays, liaising with the real estate agents for the first 2 years and thereafter:
i.       Carrying out all work in regard to the leasing of the property privately, without the assistance of an agent;
ii.      Advertising in a newspaper;
iii.    Liaising with tenants;
iv.     Arranging for cleaning of the premises;
v.      Undertaking the decorating of the premises (see para. 6.10.2).

g)        In respect of the purchase of the [N] Investment Property in 2003:
i.       Prior to its purchase, the Wife spent approximately 5 months researching investment properties, liaising with real estate agents, carrying out property inspections and creating databases (see para. 6.11.2);
ii.      The Wife made all arrangements in regard to the purchase of the property, apart from arranging the finance, including liaising with the real estate agent and the conveyancer (see para. 6.11.2);
iii.    For a period of two weeks after purchase, the Wife made arrangements for renovation work to be carried out to the property, which included new carpet, new blinds, new fencing, painting, cleaning and "yard clean-up" (see para. 6.11.3);
iv.     The Wife, with her family, contributed to and shared equally in, the painting and cleaning-up of the property (see para. 6.11.3);
v.      The Wife completed the painting of the trims, the cleaning and supervised the installation of carpet (see para. 6.11.3);
vi.     The Wife undertook a large clean up of the yard area (see 6.11.4);
vii.    After real estate agents leased the 2 tenancies in the property, the Wife was responsible for management of the property, which included collecting rent, arranging repairs, liaising with tenants and conducting inspections. This continued until 15 months after separation (see para. 6.11.5);

h)        In respect of the [K] Investment Property, the [I (2)] Investment Property and the [I (1)] Investment Property, the Wife:
i.       Undertook detailed research of real estate in various areas of Australia;
ii.      Arranged for her sister to carry out inspections of properties;
iii.    Carried out all work associated with liaising with real estate agents and the solicitor, including carrying out all searches and inspections;
iv.     Liaised with the National Australia Bank and arranged the finance for the purchases;
v.      Arranged for all three properties to be managed by real estate agents in the area;
vi.     From approximately one year after purchase, the Wife carried out all management in regard to the [I (1) & I (2)] properties, which included collecting rent, arranging repairs and liaising directly with the tenants (see paras. 6.14.1 & 6.14.2);

i)        In respect of the [I (3)] Investment Property and [I (4)] Investment Property, the Wife:
i.       Travelled to [Queensland] for one week to inspect some properties and research the area;
ii.      Purchased the two properties on behalf of the parties off the plan;
iii.    Liaised with real estate agents;
iv.     Selected tiles, carpets and blinds;
v.      Liaised with the solicitor regarding the conveyance;
vi.     Travelled back to [Queensland] and carried out a property inspection at the time the building was completed;
vii.    Arranged for the properties to be managed by a real estate agent (see paras. 6.15.1 to 6.15.6);

j)        In respect of the [I (5)] Investment Property and the [I (6)] Investment Property, the Wife:
i.       Tavelled again to [Queensland] and inspected various properties;
ii.      Purchased the two properties on behalf of the parties;
iii.    Arranged for agents to manage the 3 investment properties in [Queensland] and the [I (6)] Investment Property (see paras. 6.16.1. to 6.16.3);

k)        In respect of the Former Matrimonial Home, since separation the Wife has paid for:
i.       Repairs to the garage door;
ii.      Repairs to the pool chlorinator;
iii.    Repairs to the ducted vacuum system;
iv.     Installation of cutlery draws in the kitchen and the purchase of a replacement dishwasher;
v.      A Natural Gas invoice of $1,000.00 as a result of faulty pool equipment (see para. 5.1.15);

3.        Contributions by the Wife to the welfare of the family and contributions as a homemaker and parent:
a)        Throughout the 31 years of the marriage the Wife was responsible for cooking all the family meals and carrying out all household duties such as vacuuming, cleaning the bathrooms, washing clothes and managing the household (see para.7.1.1);
b)        The Wife was the primary caregiver to the first son, [L], and her daughter, [J] which included carrying out all duties associated with raising the children, with little or no assistance from the Husband (see para. 7.1.2);
c)        At the time of the birth of the fourth child, [M] the Wife was the primary caregiver to 4 children under 8 years of age (see para. 7.1.5);
d)        After the first child, [L] started school in 1983, the Wife became involved in school activities, which included cooking, crafts, sport attendance, supervision and attending excursions. This continued until The Wife experienced problems with her knees and other joints in about 1986 (see para. 7.1.6);
e)        The Wife drove the 4 children to school each day and picked them up at the end of the day (see para. 7.1.6);
f)        The Wife assisted the 4 children with their homework after school (see para. 7.1.6);
g)        The Wife assisted her children with piano lessons for a short period (see para. 7.1.6);
h)        The Wife attended all parent teacher evenings at school with the 4 children without the Husband (see para. 7.1.7);
i)        For the period from 1979 to 1986, the Wife was involved in a playgroup for her children at the [H] Baptist Church, which included supervising the children and assisting them with activities until she had problems with my health in 1986. Some years later the Wife resumed her involvement with the playgroup and this continued until a few years after her fourth child, [M] attended school in approximately 1993 (see para. 7.1.8);
j)       The Wife was responsible for cleaning, caring and managing the family home, which included the space occupied by the business at the [O] Home (see para. 7.1.9);
k)        From 1995 to about 2001, the Wife was required to spend additional time at home monitoring the eldest son, [L] ensuring that he was attending school and picking him up from places to bring him home at night and travelling with him by car to Queensland for 2 weeks (see paras. 7.1.12 & 7.1.13);
l)        During the period 1994-2000, the Wife was required to spend additional time monitoring her daughter, [J] due to the fact that she was suffering from the initial stages of Anorexia Nervosa including arranging for her to see a counsellor, spending many hours talking to her, caring for her and getting her the help she needed (see para. 7.1.14);
m)      Since separation, the Wife has continued to carry out all household duties, including cooking meals and washing clothes for her son, [M] who is studying at University full time and also caring for him as he has experienced problems associated with a condition in his lower back since June 2006. The Wife also cared for the son, [B] who remained at home until 1 year after the separation (see paras. 7.1.15 & 7.1.16);
B.       Section 79(4)(d):
1.        The proposed orders will have no effect on the earning capacity of either party.
C.Factors pursuant to s.75(2) to be relied upon by the Applicant Wife:
a)The Husband is 54 years of age and is in good health.

The Wife is 52 years of age and is not in good health:
i.       She suffers from mild joint pain, sequelae of sero-negative arthritis diagnosed and treated in the 1980's;
ii.      She has pain in her jaw due to arthritis of the tempero mandibular joint and restriction in movement of her mouth;
iii.    She suffers from Sjogren's syndrome resulting in dryness of the mouth and intermittent blockage of the parotid glands which can cause swelling and discomfort;
iv.     She suffers with tinnitus and hearing loss in both ears due to a degenerative disease in the middle ear;
v.      As result of the Sjogren's syndrome and Fuch's disease her eyes are affected, with the Sjogren's syndrome resulting in her having dry eyes and the Fuch's disease resulting in blurred vision (see affidavit of Dr. [Z]);

b)The Husband has the capacity for gainful employment having had over 27 years experience [in the Finance Sector]. He is currently earning approximately $140,000 per year operating the parties business, [Parsins] Group.

The Wife has a limited capacity for gainful employment as a primary school on a part time basis only, teaching small groups of students. The Wife has the capacity to work full time in an office environment doing administrative duties but only as long as she could arrange flexible working arrangements that would allow her to take days off work, and work shorter hours, from time to time. This may be an impediment, or an obstacle, in getting and maintaining full time employment, particularly having regard to her age and her work experience to date (see affidavit of Dr [Z]).

^#The table at Part N of the wife’s Financial Statement has a number of errors in it. I have done my best with it. In the Statement the wife deposes to the only other occupant of her house being the parties’ son, [M]. In total the wife contributes $229 per week to [M]’s expenses. The claim of $600 per week for food for ‘other adults’ is explained by the need to feed the boarders.
182.Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
183.As to her earning capacity, the single expert Dr Z, a Consultant Occupational Physician says that the wife has the capacity for gainful employment. The doctor was asked to report on the wife’s “capacity for gainful employment generally and her capacity for full time employment as a [teacher] in particular”. Dr Z does not believe that the wife could work full time as a teacher. He opines that she could teach small groups, in quieter environments, on a part time basis. She has the capacity for gainful employment generally and is considered capable of work full time in office environments with the proviso that she has a flexible working arrangement. He says that because of her condition, she may need to take days off and work shorter hours from time to time, and that may be an impediment or obstacle in getting and maintaining full time employment. In summary he says that she is more suitable for part time work with flexibility built in to her work hours. She can do part time teaching with small groups, which she was doing when she saw the doctor. He thinks she could increase that pending work availability to 20 hours a week spread over the full week.
184.The husband’s income is $5,708.63 per week made up as follows:

Source Amount

Salary from work $2,692.30

Rents $2,683.65

Superannuation contributions $242.30

Insurance contributions $90.38

Total $5,708.63
185.The husband lives with his current wife, Ms GH. She earns about $40,000 per annum. She owns the property where she and the husband live. There is no evidence about the value of that property but as at 1 November 2007 Ms GH owed $202,373.32 to the St George bank on that property. The husband pays her $1,000 per month by way of board. He owes her $48,000. The husband’s fixed expenditure is as follows:

Expense Amount

Income tax $883.65

Mortgage payments $6,516.70

Rates and unit levies $1,302.15

Term Life Insurance – Asteron $21.04

Motor vehicle registration $15.32

American Express Card repayments $118.40

University fees $153.85

Total $9,011.11
186.There is no evidence of the husband’s other living expenses. Evidence about his assets, liabilities and resources is set out earlier in these reasons.
187.As to his earning capacity it is submitted on behalf of the husband that “the parties jointly decided (about ten years ago) that the husband would retire next year (at age fifty-five) and have both operated on that understanding since. The husband’s earning capacity is affected in reality by this long-standing and express intention to retire next year.” There is no evidence of any reciprocal agreement in respect of the wife because the submission goes on: “The wife retains the ability to work either as a teacher (inside or outside the state system) or in business or management.” There is a logic to the concept of seeking to honour the parties’ agreement about the husband’s retirement but that is as far as it goes. It is not suggested that the agreement affects the matter that I am required to take into account – the earning capacity of the husband. In relation to that issue, the husband is 54 years of age and there is no evidence to suggest that the skills, capacities and work ethic referred to (in some detail) in relation to his contributions do not persist. That is not to say that the husband will not chose to retire, that is a matter for him.

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

188.The children are now adults.

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

himself or herself; and
a child or another person that the party has a duty to maintain;

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

189.I have set out the evidence of the parties’ expenses.

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

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

190.Neither party receives an income tested benefit. Each of the parties has superannuation interests. The wife is 52 and the husband is 54 years of age.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

191.There is little evidence in relation to the standard of living of the parties during the marriage.

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

192.There is no evidence that either of the parties intends to undertake further study although the husband pays $153 per week in university fees.

(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;

(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;

193.The wife studied Counselling on a full time basis during the marriage. I gather she applies that qualification to her current job. It follows from the evidence of the parties that the wife’s contributions allowed the husband to put time into his career and to build up his business.

(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;

194.The wife gave up her paid employment as a Teacher in 1977. She then assisted the husband from time to time. She returned to paid employment away from the husband’s business for five hours a week in 2004. She has never commanded a level of remuneration comparable to that earned by the husband. She has no doubt lost the benefits of unbroken paid employment. They include the opportunity for promotion or progression, long service and other leave entitlements and the establishment of employer funded superannuation entitlements. The marriage adversely affected her earning capacity.

(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;

195.The wife lives with the parties’ son, M. He earns $160 per week and benefits from $229 per week of the wife’s expenditure in the form of food, medical, dental, optical, pharmaceutical and some motor vehicle expenses. The husband lives with his current wife, Ms GH. She earns about $40,000 per annum. He pays her $1,000 per month in board. He owes her $48,000. She owns the property in which they reside. There is no evidence about the value of that property but as at 1 November 2007 Ms GH owed $202,373.32 to the St George bank on that property.

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

(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;

196.The wife has had the use and occupation of the former matrimonial home since separation and the husband has been paying board to his wife. If the wife has to sell the former matrimonial home there will be sale costs and no provision has been made by me for those costs. By the same token the husband wants to retain the K property. If he does ultimately sell that property there will be a CGT impost and sale costs to be set off against the ultimate sale proceeds.

(p) the terms of any financial agreement that is binding on the parties.

197.There was no binding agreement made between the parties.

Section 79(4)(f)

198.There are no relevant orders.

Section 79(4)(g)

199.This is not relevant.

Conclusion

200.It is agreed that there should be an adjustment in favour of the wife for these matters. The submissions on behalf of the wife would have the adjustment to a combined pool being in the range 5% - 10%. The husband thinks that the adjustment should be 2 ½% but only in respect of the non-superannuation pool of assets.
201.In my view the relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above, apply with equal force to both the superannuation and non-superannuation pools of assets and are:

Ø The parties are at a similar time of life;
Ø As is often the case, one of the most valuable ‘assets’ of this marriage is the husband’s unbroken history of well paid, secure employment. Even if the wife is able to acquire full time employment, her health will not allow that to be in her original profession – teaching. She cannot aspire to remuneration of the order of that received by the husband. He earns $140,000 by way of wages, the wife is unlikely to earn much more than $40,000 per annum;
Ø The wife does not have unqualified good health;
Ø The husband has remarried and his wife has an income from paid employment and, subject to some borrowings, owns her own home;
202.These factors all favour an adjustment in favour of the wife. In my view there should be a 5% adjustment to the wife. A 5% adjustment might be considered conservative in the normal course but here each percentage point represents a significant sum in dollar terms. 5% of the combined superannuation and net non-superannuation assets is about $150,000 and an adjustment of that order makes a difference between the parties of twice that sum – just over $300,000. The point of this adjustment is not to put the parties on an equal footing but to recognise the matters to which I have referred.

Just and Equitable

203.Based on their contributions and the other matters in s 79 the appropriate division of both the superannuation and non-superannuation pools is a division that is about 55% to the wife and 45% to the husband. Finally, I must consider whether it would be just and equitable within the context of s 79 if the net assets of the parties were divided in those proportions.
204.There is the related issue of the form of the orders.

Superannuation
205.The wife seeks a splitting order whereby the husband retains his superannuation and has the benefit of a splitting order based on 100% of her interest in the Parsin Group Superannuation Fund. The husband seeks that the parties retain their respective superannuation entitlements. Those entitlements are:

Superannuation Assets Value

Parsin Super Fund (wife) $272,802

BT Financial (wife) $3,300

Parsin Super Fund (husband) $528,091

Total $804,193.00

206.In amending the Family Law Act 1975 to permit the splitting of superannuation payments the Parliament has indicated a preference for dealing with superannuation by splitting superannuation payments. The policy aims include the priority placed on there being better provision for self-funded retirement. Given that superannuation interests cannot normally be accessed and dealt with as easily as other assets it is often unfair to require one party to retain a disproportionate amount of the superannuation interests and the other to retain a disproportionate amount of the non-superannuation assets.
207.The Court can take judicial notice of the fact that recent changes to the law including the reduction in tax paid on superannuation income after 60 years of age may have reduced the disadvantages of taking funds in the form of superannuation compared to accessible assets. Nevertheless, I cannot lightly leave the husband with all of the superannuation. As it is, by the orders he proposes, he wants to retain about 65% of the superannuation entitlements, being his interest in the Parsins Group fund. In the circumstances that is an appropriate arrangement. There will then need to be an adjustment back to the wife from the non-superannuation assets in order to achieve the required division of assets. In making that adjustment, some recognition is needed of the fact that superannuation has a different character to other assets. Having said that, if the husband intends to retire next year then there may be no difference.
208.As was mentioned in the submissions made on behalf of the husband, the wife’s application for a splitting order was first raised on the first day of the hearing and it was several days after the hearing that a Minute of Orders was provided to the husband’s attorneys setting out a workable order. With all of the informality that has developed in this jurisdiction in relation to the late amendment of orders sought, there is a natural justice issue about the introduction of a new type of relief. Given the reasons above, that does not matter in this case.

The Real Estate
209.The parties agree that the wife can retain or have the opportunity to retain the former matrimonial home at T. I will make provision for that in the orders.
210.Dealing with the matters in dispute:
211.Each of the parties wants to retain the K property. As to the remaining 6 investment properties, the husband wants to retain the properties and the wife wants them sold.
212.I will order that the husband have the opportunity to retain the K property but that the other properties be sold. In relation to K, in my view it is not practicable for the wife to retain both that property and the former matrimonial home. In order to do so she would need to service massive borrowings and it is her own case that her income earning capacity is compromised. There is nothing in the evidence that would suggest that the wife’s plan is achievable. In fact, the wife’s retention of the T property will be challenging.
213.As to the remaining 6 properties, each of the parties intend for the properties to be sold. There is a modest benefit to the parties in taking this opportunity to use the wife’s lower marginal tax rate to minimise the CGT impost. There is something in the husband’s concerns about the parties co-operating in the sales but that is a matter that could be addressed by machinery orders – such as giving one party conduct of the sales or a casting vote on disputed issues.

Contents of the former matrimonial home
214.The wife seeks to retain the bulk of the items and the husband seeks an equal division of the items. As the husband argued in relation to the parties co-operating in a sale of the investment properties I doubt that they could co-operate in the ‘pick a pile’ division proposed by the husband. I will leave the contents with the wife at the value ascribed to them by agreement. It is a matter for her if she wishes to return specific items to the husband.

Conclusion
215.The superannuation assets have a value of $804,193.
216.In relation to superannuation the wife is entitled to 55% of the superannuation which would be $442,306. She has interests worth $276,102. Thus the wife should receive an adjustment from the non-superannuation assets. It is not a matter of dollar for dollar because assets held as superannuation have a different character to non-superannuation assets. The difference between the two may not be as stark here in circumstances where the parties belong to a self-managed fund and are approaching an age where, depending on the terms of the scheme, it may be possible to access their entitlements. The difference in dollar terms is $166,204. I will order that the wife receive a further $150,000 by way of adjustment.
217.The net non-superannuation assets have a value of $2,251,639.11. In order to receive 55% of those assets the wife would receive about $1,238,401.51. With the adjustment of $150,000 for superannuation referred to above, the wife would receive $1,388,401.51. The wife has or has had the benefit of the following:

Non-Superannuation Assets Value

The T property (Joint) $1,500,000

F Limited shares (wife) $24,800

Honda vehicle (wife) $13,850

household items (joint) $16,000

Legal fees paid by wife $26,000

Total $1,580,650.00

218.The wife has or will retain the following liabilities:

Liabilities Amount

The T property mortgage (joint) $346,888.32

Loan from Ms C (wife) $28,000

Loan from Mr M Parsin (wife) $7,000

Loan from Mr B Parsin (wife) $20,410

Loan from Wife’s brother (wife) $3,200

credit cards (wife) $2,000

Total $407,498.32
219.The net value of those assets and liabilities is $1,173,151.68 ($1,580,650 - $407,498.32). In order to bring her to 55% (plus $150,000) she should receive an additional $215,249.83 from the remaining non-superannuation assets.
220.She will continue to owe her unpaid legal fees.
221.That would leave the husband with his interest in the Parsin Group Superannuation Fund at $528,091 and the following assets and liabilities:

Non-Superannuation assets Amount

The K property (joint) $555,000

Parsins Group Pty Limited (joint) $470,000

P International Pty Limited (joint) $290,000

Bank accounts (husband) $40,960.53

IAG shares (husband) $3,846.30

F Limited shares (husband) $24,800

Mazda vehicle (husband) $17,350

loan payable by Mr B Parsin (husband) $10,600

family loan (joint) $134,246.44

AMP insurance policy (whole of life – husband) $3,339

Annual leave entitlements (gross value) (husband) $17,725

Long service leave entitlements (gross value) (husband) $29,501

Legal fees paid by husband $127,267.88

$1,724,636.15

Liabilities Amount

The K property mortgage (joint) $206,468.02

Loan from Parsins Group Pty Limited (taxation) (husband) $44,990

Loan from Parsins Group Pty Limited (joint expenses) (husband) $20,872

Loan from Parsins Group Pty Limited (personal expenses) (husband) $37,884

Add Back wedding expenses of the husband -$13,000

Loan from Parsins Group Pty Limited (joint expenses) (husband) $3,748

Loan from Parsins Group Pty Limited (taxation) (wife) $40,538

Loan from Parsins Group Pty Limited (joint expenses) (wife) $20,872

Loan from Parsins Group Pty Limited (joint expenses) (wife) $3,748

Family loan (joint) $134,246.34

credit cards (husband $34,940.74

CGT (J Property) (Parsins Group Pty Limited) $61,070

CGT (SR Property) (Parsins Group Pty Limited) $54,306

Loan from husband’s present wife (husband) $48,000

$698,683.10
222.The net value of those assets and liabilities is $1,025,953.05 ($1,724,636.15 - $698,683,10). 45% of the net non-superannuation assets is about $1,013,237.60. With the adjustment for the difference in the parties’ superannuation of $150,000, he should receive a total of about $863,237.60. He will need to pay the wife $162,715.45.

223.Thus the wife is to receive a further $215,249.83, being $162,715.45 from the husband and $52,534.38 from the remaining assets. The remaining assets are:

Joint assets

Non-Superannuation assets Amount

The E property (recently exchanged for sale) (Joint) $1,200,000

The I (2) property (wife) $345,000

The I (3) property (wife) $330,000

The I (4) property (wife) $390,000

The I (1) property (husband) $385,000

The I (5) property (husband) $235,000

The I (6) property (husband) $300,000

The N property (recently exchanged for sale) (husband) $742,000

Total $3,927,000.00

Joint debts

Liabilities Amount

The E property mortgage (joint) $1,843,000

The I (2) property mortgage (wife)   $189,248.08

The I (3) property mortgage (wife) $220,947.05

The I (4) property mortgage (wife)           $235,122.45

The I (1) property mortgage (husband)   $212,022.04

The I (5) property mortgage (husband) $126,165

The I (6) property mortgage (husband) $175,215

The N property mortgage (husband)   $746,274

CGT (The I (2) property ) (wife) $22,589

CGT (The I (3) property) (wife)                  $14,927

CGT (The I (4) property) (wife) $21,528

CGT (The I (1) property) (husband) $24,898

CGT (The I (5) property) (husband) $13,770

CGT (The I (6) property) (husband) $16,929

CGT (The N property) (husband) $5,552

CGT credit E property (estimated) -$99,550

Estimated sales costs of investment properties $58,889

Outstanding costs of sale (the E property) (joint) $28,500

Outstanding costs of sale (the N property) (husband) $18,440

Total $3,874,465.62

224.That leaves a net figure of $52,534.38 ($3,927,000 - $3,874,465.62). That figure is artificial of course and the real net value of those assets will only be realised on the completion of all sales and the assessment of tax.
225.In my view, the outcome I have identified would be a just and equitable result.

Conclusion under Section 79

226.I will make orders whereby the wife will have the opportunity to retain the T property and the husband will retain the business together with the associated liabilities. The husband will retain the K property and will pay the wife $162,715.45. Otherwise the parties will sell all of the investment properties held in their joint names or in the name of either of them. Apart from that the parties will retain what they have and owe. There is a concern arising from the fact that as the orders are framed the wife carries all of the risk (and the potential profit) in relation to the sale of the remaining joint assets. Although it will involve some delay in the final reconciliation, another course would be to defer the final settlement until the substantial outcome of the program of sales in known. That is a matter that the parties might consider in relation to the form of orders that will best implement these reasons. As with their involvement in Parsin Group Pty Limited, in my view the parties’ superannuation affairs should be separated. It is not appropriate that the husband’s company be the trustee for the wife’s superannuation fund. The parties will be ordered to make arrangements to roll-over the wife’s interest in the Parsin Group superannuation fund into a fund of her choosing. Given the complexity of the parties’ affairs I will stay the operation of the orders until 4.00 pm on 20 December 2007 so as to allow the parties to bring the matter back in relation to the form of orders.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate

Date: 12 December 2007

[2007] FamCA 1458

1 November 2007

Key Legal Topics

Areas of Law

Family Law

Property Law

Commercial Law

Legal Concepts

Remedies

Costs

Jurisdiction

Injunction

Statutory Construction

Source	Amount
Salary from work	$2,692.30
Rents	$2,683.65
Superannuation contributions	$242.30
Insurance contributions	$90.38
Total	$5,708.63

Expense	Amount
Income tax	$883.65
Mortgage payments	$6,516.70
Rates and unit levies	$1,302.15
Term Life Insurance – Asteron	$21.04
Motor vehicle registration	$15.32
American Express Card repayments	$118.40
University fees	$153.85
Total	$9,011.11

Superannuation Assets	Value
Parsin Super Fund (wife)	$272,802
BT Financial (wife)	$3,300
Parsin Super Fund (husband)	$528,091
Total	$804,193.00

Non-Superannuation Assets	Value
The T property (Joint)	$1,500,000
F Limited shares (wife)	$24,800
Honda vehicle (wife)	$13,850
household items (joint)	$16,000
Legal fees paid by wife	$26,000
Total	$1,580,650.00

Liabilities	Amount
The T property mortgage (joint)	$346,888.32
Loan from Ms C (wife)	$28,000
Loan from Mr M Parsin (wife)	$7,000
Loan from Mr B Parsin (wife)	$20,410
Loan from Wife’s brother (wife)	$3,200
credit cards (wife)	$2,000
Total	$407,498.32

Non-Superannuation assets	Amount
The K property (joint)	$555,000
Parsins Group Pty Limited (joint)	$470,000
P International Pty Limited (joint)	$290,000
Bank accounts (husband)	$40,960.53
IAG shares (husband)	$3,846.30
F Limited shares (husband)	$24,800
Mazda vehicle (husband)	$17,350
loan payable by Mr B Parsin (husband)	$10,600
family loan (joint)	$134,246.44
AMP insurance policy (whole of life – husband)	$3,339
Annual leave entitlements (gross value) (husband)	$17,725
Long service leave entitlements (gross value) (husband)	$29,501
Legal fees paid by husband	$127,267.88
$1,724,636.15

Liabilities	Amount
The K property mortgage (joint)	$206,468.02
Loan from Parsins Group Pty Limited (taxation) (husband)	$44,990
Loan from Parsins Group Pty Limited (joint expenses) (husband)	$20,872
Loan from Parsins Group Pty Limited (personal expenses) (husband)	$37,884
Add Back wedding expenses of the husband	-$13,000
Loan from Parsins Group Pty Limited (joint expenses) (husband)	$3,748
Loan from Parsins Group Pty Limited (taxation) (wife)	$40,538
Loan from Parsins Group Pty Limited (joint expenses) (wife)	$20,872
Loan from Parsins Group Pty Limited (joint expenses) (wife)	$3,748
Family loan (joint)	$134,246.34
credit cards (husband	$34,940.74
CGT (J Property) (Parsins Group Pty Limited)	$61,070
CGT (SR Property) (Parsins Group Pty Limited)	$54,306
Loan from husband’s present wife (husband)	$48,000
$698,683.10

Non-Superannuation assets	Amount
The E property (recently exchanged for sale) (Joint)	$1,200,000
The I (2) property (wife)	$345,000
The I (3) property (wife)	$330,000
The I (4) property (wife)	$390,000
The I (1) property (husband)	$385,000
The I (5) property (husband)	$235,000
The I (6) property (husband)	$300,000
The N property (recently exchanged for sale) (husband)	$742,000
Total	$3,927,000.00

Liabilities	Amount
The E property mortgage (joint)	$1,843,000
The I (2) property mortgage (wife)	$189,248.08
The I (3) property mortgage (wife)	$220,947.05
The I (4) property mortgage (wife)	$235,122.45
The I (1) property mortgage (husband)	$212,022.04
The I (5) property mortgage (husband)	$126,165
The I (6) property mortgage (husband)	$175,215
The N property mortgage (husband)	$746,274
CGT (The I (2) property ) (wife)	$22,589
CGT (The I (3) property) (wife)	$14,927
CGT (The I (4) property) (wife)	$21,528
CGT (The I (1) property) (husband)	$24,898
CGT (The I (5) property) (husband)	$13,770
CGT (The I (6) property) (husband)	$16,929
CGT (The N property) (husband)	$5,552
CGT credit E property (estimated)	-$99,550
Estimated sales costs of investment properties	$58,889
Outstanding costs of sale (the E property) (joint)	$28,500
Outstanding costs of sale (the N property) (husband)	$18,440
Total	$3,874,465.62