Patino and Patino
[2008] FMCAfam 1213
•17 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATINO & PATINO | [2008] FMCAfam 1213 |
| FAMILY – Property – alteration of property interests – long marriage – add-back of money – equal contribution at separation – post-separation contribution – assessment of future needs. |
| Family Law Act 1975 ss.75(2), 79 |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Norbis v Norbis (1986) 161 CLR 513 |
| Applicant: | MS PATINO |
| Respondent: | MR PATINO |
| File Number: | WOC 410 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 7 March & 29 August 2008 |
| Date of Last Submission: | 29 August 2008 |
| Delivered at: | Wollongong |
| Delivered on: | 17 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bell |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Webb Thom & Associates |
ORDERS
1.That subject to Order 11 below the parties do all things necessary including executing all documents necessary to list for sale and sell the property situate at and known as Property R, NSW being the whole of the land contained in certificate of title [2] by private treaty at the earliest possible date at a price to be agreed on between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
1.1Payment of agent's commission and advertising expenses and legal costs and disbursements of the sale.
1.2Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.
1.3In repayment of the debt to Adelaide Bank as follows:-
1.3.1Mortgage secured on the property.
1.3.2Line of Credit.
1.3.3Investment property mortgage.
1.3.4Visa card debt.
1.4In payment of the balance to the wife.
2.That the parties do all things necessary including executing all documents necessary to list for sale and sell the property situate at and known as Property M Queensland by private treaty being the whole of the land contained in Certificate of Title [1] at the earliest possible date at a price to be agreed on between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
2.1Payment of agent's commission and advertising expenses and legal costs and disbursements of the sale.
2.2Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of Queensland or his/her nominee.
2.3In repayment of the mortgage secured on the property Mortgage No. [7] with Permanent Custodians Limited.
2.4Subject to Order 3 below in payment to the Australian Tax Office the capital gains tax assessed as payable arising from the sale of the property.
2.5The net balance to be divided as per Court’s determination.
3.The parties to take all necessary steps to ascertain the capital gains tax above as soon as practicable including:
i)Instructing their agreed accountant or in default of agreement such accountant as may be appointed by the delegated officer of the President of the Institute of Chartered Accountants the relevant capital gains tax payable in relation to the sale of Property M above;
ii)In the event that (and subject to any agreement between the parties otherwise) the relevant accountant has not yet determined or ascertained the amount due then the parties shall set up a joint account or controlled moneys account as agreed between them but in default of agreement by the solicitor retained on the sale of that property or his or her recommended alternate solicitor to hold in trust a sum determined by the said accountant as a reasonable allowance therefore for payment to the ATO upon assessment.
iii)In the event that in due course the assessment is less than that which had been estimated or any interest that may be accruing on that account then such surplus shall be divided equally between the parties;
iv)In the event that there is a shortfall arising from the estimate being less than the correct assessment then the parties shall forthwith contribute equally to it;
v)Provided further the parties will take all such steps as are reasonably necessary to cooperate with the accountant to the intent that their relevant taxation returns are completed and the assessment process is completed appropriately.
4.That until the finalisation of the sale of the property at Property M referred to above in these Orders the husband shall attend to the payment, as they fall due, of all outgoings in respect of the property including the payment of council rates, water rates, insurance payments and mortgage payments and to this end the husband and the wife shall ensure that the entire net rental income received by them in respect of this property shall be applied towards reducing the mortgage secured on the property and in this regard the husband and the wife are agreed that the husband shall receive the entire rental income from the property at Property M.
5.The wife transfer to the husband all her right title and interest in
Property K, Queensland and that simultaneously with the transfer the husband shall refinance into his sole name the mortgage loan secured on the property. Without limiting same he shall indemnify the wife and forever keep her indemnified against any liabilities in respect of the property including the payment of rates, insurance payments and mortgage payments now and in the future.6.That as between the parties the husband shall be the sole owner of his superannuation entitlements with Life Track Superannuation Fund (Optus Superannuation Plan), CARE Super Pty Ltd and SuperTrace Eligible RolloverFund and MLC Superannuation Fund.
7.That as between the parties the wife shall be the sole owner of her superannuation entitlements with REST Superannuation
8.That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively own and retain all interest in and entitlement to:
8.1All personal property chattels now in his/her respective possession or control (but subject to any agreement as to division of same);
8.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
8.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
9.That as between the Husband and Wife and subject to the above Orders, the Husband and Wife shall each separately be responsible for their own debts and liabilities and indemnify the other party as to same.
10.That each party take all steps necessary including the execution of all reasonably required documents to give efficacy to these orders.
11.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
12.The parties have leave to relist this matter before Federal Magistrate Altobelli on 7 days notice as regards the interpretation, implementation or enforcement of these orders.
THE COURT NOTES THAT
13.The parties jointly owned household furniture and items have been or will be divided between the parties by agreement and arrangement between them.
14.The property at Property R has been sold for $336,000.00 and the parties received net sale proceeds in the amount of $50,509.52.
IT IS NOTED that publication of this judgment under the pseudonym Patino & Patino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC 410 of 2007
| MS PATINO |
Applicant
And
| MR PATINO |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for alteration of property interests under s.79 of the Family Law Act, commonly known as a property settlement.
The wife is the applicant. She currently resides in Wollongong and is 41 years old. The husband is the respondent. He is 42 years old and lives in a south-western suburb of Sydney.
They married in April 1987 and separated on 22 January 2007. They thus cohabited for nearly 20 years. They have three children aged 20, 17 and 15, all who currently reside with their father.
Background
When the husband and wife first married neither had any assets of significance. They both worked assiduously in the roles which they had themselves agreed to adopt during the marriage. They accumulated the assets and financial resources to which I will shortly refer. At the end of their marriage it is common ground that the diverse contributions that each made to the marriage, financially and non‑financially, direct and indirect, and to the welfare of their family, should be treated as equal.
Initially after separation the children lived with their mother. In April 2007 the oldest child went to live with her father followed by the middle child in May and the youngest child in September. During the time that the children lived with their mother the husband was paying child support as assessed. He was working full time. When the children went to live with their father the wife was assessed to pay child support, though the amounts actually paid were nominal having regard to her income.
At the time of separation the parties had a line of credit which was in debit in an amount of $9,578.40. Within a short time thereafter both the husband and the wife had, in effect, "raided" the line of credit with each now saying that it was a pre-emptive strike, in anticipation of the other taking these funds. The line of credit was fully drawn to $40,000. One of the issues that I have to decide in this case is whether, and if so to what extent, the moneys drawn by either party should be added back to the property pool as notional property.
The husband also argues that the contributions that he has made in the post-separation period, both financially and to the welfare of the family, need to be recognised by way of an adjustment in his favour. He says that he was solely responsible for the management of the parties' joint financial affairs, as well as financially responsible for the care of the children, in the post-separation period, with minimal support from the wife. This is an issue that I will need to decide.
The husband is in full-time employment as a [omitted] with a telecommunication company. He has a good income which is supplemented by annual bonuses. It would be fair to say that his financial position is secure, at least from an income perspective. The wife works on a part-time basis as a cleaner and her income is supplemented by New Start Allowance. She is presently living with her mother in Wollongong. She was in occupation of the former matrimonial home until 19 May 2008 when she moved out to live with her mother in Wollongong. She appears to be experiencing some health issues but the evidence in this regard was most unclear. In any event, she asserts that there should be a s.75(2) adjustment in her favour to take into account a number of factors including the disparity in earning capacity that exists between her and her husband. The husband asserts that there should be no s.75(2) adjustments in favour of the wife, having regard to considerations that work in his favour, primarily arising out of his care of the children. This is another issue I will need to decide.
The final order I make will need to be just and equitable not just in its assessment of contributions and future needs, but also in terms of how the order is actually implemented. The financial position of the parties is in a state of flux. The former matrimonial home is on the market for sale and, as at the date of the trial, there is every indication to believe that it has been sold though contracts have not been exchanged. It also appears that one of the negatively geared investment properties owned by the parties in Queensland will need to be sold. The husband has a fairly substantial superannuation entitlement in respect of which no splitting order is sought. These, amongst other factors, I will need to take into account in order to determine what is a just and equitable order under the circumstances.
Issues
Accordingly, I perceive the issues in this case to be as follows:
i)Should there be an add-back as notional property of moneys drawn from the line of credit of the husband and the wife on or shortly after separation?
ii)Is there a claim for post-separation contribution by the husband, and if so for how much?
iii)Are there s.75(2) considerations that, on balance, favour the wife and if so, by how much?
iv)What is the just and equitable order to make under the circumstances of this case?
Applicable Law
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole.
My discretion in this regard should be exercised having regard to the facts of this case.
Section 79 of the Family Law Act provides as follows:
s.79 Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Add-Back Issue
I am satisfied that the evidence establishes that at about the time of the parties' separation they had a line of credit with a limit of $40,000 but which was drawn down to the extent of $9,578.40. There is no dispute that, as at the date of the trial, this line of credit was fully drawn down to its limit of $40,000. The wife asserts that, using the card attached to the line of credit, she was able to make drawings totalling $3,152.42 between February 2007 and July 2007. She asserts that the remaining balance, $27,535.18 was drawn by the husband.
The wife was not able to satisfactorily establish how, exactly, she used various cash amounts drawn on the line of credit, particularly in July. However, nothing turns on this. The amounts in question are two $1,000 withdrawals on 6th and 7 July 2007 really make no difference in the overall scheme of things. Having regard to her financial circumstances post separation, it would be very difficult to criticise her for any part of her draw down on the line of credit.
The husband concedes that he used $18,000 out of the line of credit and his evidence is that all of it was used for the post-separation living expenses of the family consisting of the three children and himself. His case is that he was almost solely responsible for the expenses of the family, servicing the mortgage secured over the parties' properties, making payments on the line of credit, house insurance payments etc. Indeed, in his affidavit sworn 11 August 2008, he details with considerable particularity moneys he has spent on the children, on the properties, and on servicing loans etc. The husband was not seriously challenged about this evidence though the submission was quite properly made, on behalf of the wife, that he incurred a taxation benefit in relation to some of the expenses incurred for the parties' negatively geared properties in Queensland.
I am satisfied that the husband probably drew down $18,000 and possibly drew down $27,000 but that, in either event, all of the moneys would have been used for necessary family living expenses and, at the very least, preserving the status quo of the parties' financial situation. In these circumstances no add-back is appropriate. There has been no premature distribution of the parties' assets that could not be explained by expenses that are necessary, reasonable and in some respects for the benefit of both the husband and the wife anyway. Accordingly, there is no add-back.
Pool of Assets
The following pool of assets is established on the basis of the agreement between the parties, evidence given at the hearing, and concessions made by them. It excludes post-separation personal liabilities which are clearly the responsibility of the party who incurred them. In relation to furniture and contents, each of the husband and the wife has agreed that they will retain whatever they have. The husband drives a motor vehicle which is quite heavily encumbered by way of lease finance and he agrees that he should retain his car and the liability that goes with it. Both parties are expecting a capital gains tax liability arising from the sale of investment properties and have agreed, in principle, to set aside a fund from which this tax can be paid once the precise liability has been established.
The net result of all of this is as follows:
Non-Superannuation Assets
i)Property R - Joint $366,000
ii)Property K - Joint $475,000.
iii)Property M - Joint $455,000.
iv)Optus Shares - Husband $13,560.
v)CBA Account - Husband $2,200.
vi)Holden Commodore - Wife $1000.
Total Non-Superannuation Assets: $1,312,760
Superannuation Assets
vii)IOOF fund - Husband $116,600.
viii)Super Trace Fund - Husband $6,797.
ix)MLC Master Key - Husband $5,067.
x)Care Super - Husband $7,042.
xi)REST Superannuation - Wife $16,882.
Total Superannuation Assets: $152,388
Total Combined Pool of Assets: $1,465,148
Liabilities
xii)Mortgage to Adelaide Bank - Joint $82,300.
xiii)Other mortgage to Adelaide Bank - Joint $170,500.
xiv)Line of credit - Joint - $40,000.
xv)Mortgage to Permanent Custodians - Joint $200,000.
xvi)Other mortgage to Permanent Custodians - Joint $208,000.
xvii)Visa Card - Joint $4,200.
xviii)GE Credit Card - Joint $2,010.
Total Liabilities: $707, 010
Total Net Assets:$758,138
Post-Separation Contribution
The basis of the husband's claim for a post-separation contribution adjustment in his favour can be summarised as follows. Firstly, he has made substantial financial contributions by way of expenditure towards the family and maintaining and preserving the parties' assets including servicing quite substantial loans. In addition, he has been almost solely responsible for post-separation parenting. Regrettably, there appears to have been a breakdown in the relationship between the mother and the children so she has not been much involved in their lives since then. One can only hope that this does not continue into the future. Also, because of the mother's parlous financial circumstances, she has not been able to make a significant financial contribution towards the costs of their upbringing. On behalf of the husband, the claim for post-separation contribution is articulated at about 10 per cent.
On behalf of the wife, it was submitted that even though it is difficult to cavil with the factual matters asserted on behalf of the husband, the court must take into account the circumstances of this case. Firstly, the husband was in a vastly superior financial position to that of the wife having regard to his greater income. Secondly, the wife asserts that she was working to capacity and that she cannot be criticised for not making a greater financial contribution towards the needs of the children. Thirdly, that some of the expenses that the husband relies on in support of a claim for post-separation contribution were funded by the joint line of credit and if a finding should be made that there be no add-back of moneys drawn by him (as is indeed the case here) the result is that some of the husband's claim for post-separation contribution is, in the end result, funded by the joint line of credit. Fourthly, some of the expenses advanced by the husband in support of his claim for post-separation contribution result in taxation deductions to him, by way of negative gearing.
Whilst there is considerable force in the wife's submissions as to why there should be no post-separation adjustment in favour of the husband, even if one eliminates the benefits to him of using the joint line of credit and having taxation benefits accrue through negatively geared expenses, the fact is that he was left with the care of two minor children for a considerable period of time in circumstances where the wife was unable to assist financially. In those circumstances and taking into account the circumstances of both parties, I think a modest post-separation adjustment for the husband's contribution is just and equitable. I propose a figure of 2.5 per cent.
Section 75(2) Considerations
It is interesting to note that the husband's case was not advanced on the basis that there was no s.75(2) adjustment in favour of the wife, even considering the matters that he invokes in his favour. The husband's case frankly acknowledged that he had a significantly greater income earning capacity, though that needs to be considered in the context of his responsibility for the care of two minor children with minimal support by way of child support from the wife. Even having regard to these matters, he concedes there should be an adjustment in the wife's favour but suggests that it should be no less than 2.5 per cent and no greater than 5 per cent.
On behalf of the wife it was asserted that the adjustment in her favour should be 15 per cent, primarily because of the significant income earning disparity between the parties, but also because of some concerns about the wife's health.
The wife is 41 years old. She works two days per week, lives with her mother, and is not presently paying board though she does assist with purchasing groceries. She has undertaken courses at TAFE and is currently undertaking another course, both of which are designed to help her with future employment. Both courses give the impression of being fairly basic entry level skill courses that are designed to prepare the student for work in a computer related environment. She agreed in cross-examination that she would look for full-time work in the future. There was no criticism of her current level of part-time work. There was no suggestion that she was not working to her capacity.
In October 2007 she had surgery at [omitted] Hospital, remained in hospital for three days, thus delaying her ability to find work. Her evidence is, and I accept this evidence, that she has sought assiduously to find employment.
The separation appears to have affected her emotionally. A reasonable inference to be drawn from the available evidence is the fact that all three children went to live with their father was upsetting to the mother. This is understandable under the circumstances.
The medical evidence in support of her case was really quite poor. There were two affidavits provided by a general practitioner in affidavits sworn 18 January 2008 and 19 August 2008. The medical reports are fraught with difficulty and strenuous objections were made about their admissibility. In the end I admitted the reports subject to weight but, regrettably, the weight to be given to these reports is minimal. Doing the best I can to discern, objectively, what these reports say about the wife, it seems as if she is depressed and suffers poor self-image. The doctor's reports, and her own evidence, confirms that she has been taking anti-depressants for many years. The first report contains an assertion by the doctor that the wife is not capable of working. The second report, whilst asserting that the wife's condition has worsened, makes no observation about her ability to work. In any event, the conclusion reached by the doctor in the first report is unsupported by sufficient facts that would support his conclusion. In any event, whatever the doctor may have thought about the wife's capacity for employment, it is inconsistent with the facts in that the wife herself gives evidence that she has actively sought work, and is working, albeit on a part-time basis.
I have to take the evidence as I find it. Insofar as the wife's claim for a s.75(2) adjustment in her favour is based on her ill health, I place minimal weight on the evidence and any adjustment I make in this regard is minimal. If this was a serious part of the wife's case, it should have been supported by appropriate medical evidence. I can only assume that the rather half-hearted attempt to advance evidence about her health, and in particular the impact of her health on her future employability, reflects a half-hearted view about this s.75(2) consideration.
Notwithstanding this, I am left with a very substantial disparity in earning capacities. The husband himself gives evidence in his affidavit filed 14 February 2008 about the actual differences in their earning capacity during their marriage. For example; in the 2006 tax year he earned three times as much as the wife. In 2005 it was five times as much as the wife. In 2004 the wife earned nothing but he earned $88,000. In the 2003 financial year he earned more than ten times as much as the wife. The disparity is significant and there is no evidence before me to indicate that the disparity will change in any meaningful way, even if she finds full-time employment.
On behalf of the wife it was submitted that I need to consider the actual impact in dollar terms of any s.75(2) adjustment, thus, for example, if I was considering a 10 per cent adjustment in favour of the wife, the actual impact is a disparity of 20 per cent or about $150,000 on the facts of this case.
I am satisfied that an adjustment in the wife's favour of 10 per cent for s.75(2) considerations is just and equitable under the circumstances and already offsets and recognises the s.75(2) considerations operating in favour of the husband as a result of his caring responsibilities for the children.
Conclusion and Just and Equitable Order
The final outcome of my assessment of contribution and future needs would result in an outcome of 57.5 per cent to the wife, and 42.5 per cent to the husband. On the facts of this case it is appropriate that the percentage be applied to the combined pool of assets. As indicated above, the implementation of these orders will depend upon an orderly sale of assets, but I am satisfied that this leaves both parties with a cash amount with which to re-establish themselves, particularly from the wife's perspective, to meet her accommodation needs. As no splitting order was sought they will each retain the superannuation they presently have.
This does create inequity to the husband however. He has total superannuation entitlements of $135,506. He is only 42 years old and thus will not be entitled to receive his superannuation for many years, whereas the wife will receive the benefit of a cash adjustment immediately. An adjustment is appropriate to reflect this fact, and also that he will probably incur some tax liability at a future date on this entitlement. The same applies to the wife, but the impact on her is much less because her entitlement is much smaller. I have no evidence before me with which to calculate this discount, and yet I believe it is just and equitable to do so. I could arbitrarily chose a figure, or another alternative is to treat this as a s.75(2)(o) consideration and deal with it as a percentage. I prefer the latter as a more convenient method to attempt to achieve justice & equity. I will reduce the wife’s entitlement by two percent to reflect the consideration referred to above. Thus her entitlement will become 55.5 percent and his 44.5 percent.
The husband intends to retain one of the Queensland properties but his mortgage commitments will be manageable, one would have thought, having regard to his income. I am satisfied that in all the circumstances the order I propose is just and equitable.
At the conclusion of the evidence counsel for the parties indicated that an agreed minute of order would be submitted to me reflecting what the parties have agreed about an orderly sale of the former matrimonial home at Property R and the sale of the Property M property. These orders were indeed submitted and are closely reflected in the orders I have made. The parties seem to have agreed that:
a)
The wife will receive all of the net sale proceeds of the
Property R property after the payment of the debts referred to in order 1.3; and
b)The sale of the Property M property will fund further reduction of joint debts and payment of the parties’ capital gains tax liability (which is to be calculated in accordance with order 3); and
c)The wife transfer to the husband her interest in Property K and he will refinance the debt over that property; and
d)Each will keep their own superannuation, and household items to be divided as agreed.
In these circumstances it is difficult for the court to frame orders that quantify the wife’s entitlement with precision. She is entitled to 55.5% of the net assets. I will leave the parties to implement this outcome through the agreed orders they have submitted, but grant them leave to relist the matter if they need me to determine any specific issue or matter.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 17 November 2008
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