Pauley and Pauley

[2009] FamCA 19

FAMILY COURT OF AUSTRALIA

PAULEY & PAULEY [2009] FamCA 19

FAMILY LAW – PROPERTY SETTLEMENT – property to be sold as wife has no financial means of acquiring the husband’s interest

Family Law Act 1975 (Cth)

APPLICANT: Mr Pauley

RESPONDENT: Ms Pauley

FILE NUMBER: CSC 576 of 2007

DATE DELIVERED: 12 January 2009

PLACE DELIVERED: Cairns

JUDGMENT OF: Justice Moore

HEARING DATE: 7, 8 and 9 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S Pearson

SOLICITOR FOR THE APPLICANT: Ms E Cuthbertson

THE RESPONDENT WIFE: Ms Pauley appeared on her own behalf

Orders

1. The parties are to forthwith, or within such further time as the parties agree in writing, do all acts and execute all documents necessary to sell

   (i)the property known as M in the State of Queensland more particularly known as Lot … County … Parish … including any water licence and primary production business conducted on the property; and

   (ii)the plant and equipment located on the property and subject to the valuation by Mr L excluding the trailer valued at $850. 

2. Pending the completion of the sale of the property referred to in Order 1 (i) the wife has the right to occupy the property subject to her maintaining the property having regard to its present state and facilitating the sale by permitting inspection by agents and prospective purchasers at all reasonable times. 

3. The sale of the property referred to in Order 1 (i) is to be at a price agreed, by a method agreed and listed with a reputable selling agent agreed and failing agreement listed with an agent nominated by the husband, by public auction, and with a reserve price nominated by the auctioneer. 

4. The parties are to do all acts and execute all documents necessary to cause the proceeds of sale of the property referred to in Order (i) and (ii) as follows:

   (i)all reasonable expenses of sale including agent’s commissions and legal commissions as well as the usual adjustments including adjustment of council and water rates; 

   (ii)to discharge the mortgage registered on the title;

   (iii)to discharge the debts owing to AGC and CNW; and

   (iv)to the wife 55% of the balance remaining and 45% to the husband;

   (v)from the husband’s entitlement to 45% referred to in (iv) there is to be paid to the wife the sum of $9,000.

5. Subject to orders 1-4 hereof:

   (i)the wife is to be entitled to retain absolutely the Pajero motor vehicle, the household furniture and contents of the M residence, the sale proceeds of the Landcruiser and her superannuation entitlements; and

   (ii)the husband is to be entitled to retain absolutely the proceeds of sale of stock and equipment sold in February 2007, the sale proceeds of the Hilux vehicle, his tools and trailer located at the M property.

6. If either party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made, the registry manager at the Family Court of Australia, Townsville is appointed pursuant to s 106A to execute such deed or instrument in the name of that party and do all acts and things necessary to give validity and operation to the deed or instrument. 

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC576 of 2007

MR PAULEY

Applicant

And

MS PAULEY

Respondent

REASONS FOR JUDGMENT

Proceedings

1. The parties have resolved issues related to the future arrangements for their three children and consent orders have been made, but they are unable to agree about the division of their property.  For the most part that consists of acreage outside M on which produce is grown. 

2. In her formal application the wife, who has represented herself, sought an order that the husband transfer to her his interest in the M property but she now accepts that the inevitable consequence of dividing their property will be its sale.  While she also sought a distribution of their property in the proportions of 90% to her and 10% to the husband, she also now accepts that to be overly ambitious and unrealistic.  Counsel for the husband, on the other hand, argued for an overall outcome in the range of 55% - 60% to the husband. 

Approach

1. The assessment of their entitlements is governed by s 79 of the Act which provides that the Court may not make an order altering the interests of parties in property unless it is satisfied that in all the circumstances it is just and equitable to do so.  In considering what order, if any, should be made, account must be taken of the matters referred to in s 79(4).  The approach to that task involves a number of steps: (i) the identification of the property of the parties and its' value; (ii) an evaluation of their contributions of the kind referred to in paragraphs (a) to (c) above; (iii) an evaluation of paragraph (d); (iv) an evaluation of the matters referred to in paragraph (e) which picks up the terms of s 75(2); and (v) an evaluation of the matters referred to in paragraphs (f) and (g).  Finally, it will be necessary to stand back and review the outcome against the just and equitable requirement. 

Evidence

1. The evidence directed to the relevant financial history is not extensive but a couple of preliminary observations should be made about the record of it to follow. 

2. First, there are disputes about what happened at several stages along the way and so, while no submissions were made about credit, the reliability of the versions they have offered becomes an issue.  But the resolution of that is problematic because the parties’ capacity for objectivity has long been lost, demonstrably apparent from their mutual and long standing antipathy which was played out even in the way they dealt with each other in the course of the hearing.  While some concessions were made in some areas about the input of the other over time, neither impressed as giving a fair or impartial account of past developments. 

3. Secondly, contrary to the parties’ apparent view that all of the matters agitated in their evidence is relevant to their property dispute, some of it descends to a level of minutiae that adds nothing of substance to the exercise of arriving at a just and equitable outcome and some of it stands alone as an allegation, without any probative evidence to support the proposition being propounded. 

4. What follows are the more material facts as I find them to be and where there are differences or disputes, they will be addressed in context. 

History

1. The husband is now 51 years of age and the wife 48.  They met and began living together in 1992.  They married in December 1994.  They have three children: D (14) born in November 1994, X (12) born in February 1996 and K (10) born in October 1998. 

2. Their relationship was marred by conflict and violence, though no finding could be made here about where the responsibility lay for that, and they separated more than once.  Their final separation occurred on 19 February 2007 after an uproar and police intervention when the husband left the M property.  He then moved to Brisbane and he has lived there since.  The wife has occupied the M property in the meantime and, for the most part, the children have lived with her.  They have spent limited time with their father and, in circumstances that were laid out more particularly in the material supporting the parenting proceedings, they were in his care in Brisbane for different periods over a few months during 2008.

3. When their relationship began the husband, an electrician by trade, was self employed operating his own electrical business.  There is nothing to indicate its value or state of solvency at the time. 

4. There is disagreement about what, if any, assets the wife had at the outset.  The husband says she had nothing while she says in her primary affidavit she had $10,000.  Yet in an earlier affidavit she gave evidence of having $5,000 in savings and while she explained the inconsistency by saying she had used the other half of the $10,000 to buy a car, she had made no mention of a vehicle in her earlier affidavit.  Whether she had an assets or not, it is hard to say, but she may have had some savings and/or a motor vehicle and for present purposes it can be accepted that she did have something. 

5. As for their property dealings over the years, these would appear to be the relevant developments:

   (a)In 1996 or 1997 the husband’s father died and he inherited his father’s Estate.  He received a stamp and coin collection, his father’s house in Brisbane and about $4,000 cash which was applied towards his father’s funeral. 

   (b)Until then, it is inferred, they had been living in rented premises.  The husband’s business had folded in 1994 – at some stage he was declared bankrupt - and at the time he inherited this property he was working as an electrician earning $50,000 net per annum.  By then they had two small children – D born in 1994 and X born in February 1996 – and the wife had been primarily responsible for their day to day care. 

   (c)They decided to renovate or improve the Brisbane home in order to sell it and obviously the work done was not insubstantial.  As the husband put it, they converted a 4 bedroom home to a 3 bedroom home with ensuite, installed a new kitchen and bathroom and it was painted inside and out.  There is no doubt they each worked on the property to bring it to the condition it was in at the time of sale and nor is there any doubt that the husband used his skills in the process.  However, there is dispute about who did what in circumstances where the wife is now asserting she did more than he now acknowledges, including painting wholly the interior and exterior, tiling and other things.  But quite apart from the difficulty of forming any concluded view about the margin of their differences on the topic, the argument has no real importance since the more likely and realistic scenario is that to the extent that one may have done less than the other there were young children and the family as a whole to be looked after and nothing suggests either was loafing while the other was working on the improvements.  The probabilities suggest that their efforts in the direction of paid work, family responsibilities and improving the Brisbane home were all undertaken jointly and, taking the bundle as a whole, I can see nothing to cause the contributions of one to be elevated over those of the other.  The husband’s inheritance is something else. 

   (d)The Brisbane home was sold by the husband’s trustees in bankruptcy.  The wife suggests in passing that he had ‘bad business practices’ but if that is offered to have it weigh against the husband, it fails.  The cause of his bankruptcy was not explored in any way at all – it may well have been the upshot of any number of developments at the time, including events over which the husband had no control.  It could not be the subject of a finding.  But there is nothing to justify sheeting responsibility home to him so as to give it some bearing on property entitlements here.  From the sale of the Brisbane home, after payment of the business debts and the associated costs and fees, the husband received over $70,000. 

   (e)After a short stint at C they bought their first home at S in Brisbane’s suburbs.  They paid either $183,000 or $187,000 and borrowed either $110,000 or $115,000. 

   (f)They later decided to move to North Queensland and they sold the S home for $295,000.  Whether or not the husband wanted to sell it earlier for less than what they ultimately received is of no relevance since the wife’s broad proposition to that effect is unsupported by any evidence from anyone qualified to say what its value was at the time she urged its retention. 

   (g)The wife went to Cairns to look for property to purchase and she located a property at U which they purchased for $212,000.  Nothing turns on her brief investigations of the market or whether or not the husband did the negotiations.  Ultimately the sale proceeds of the S home were applied towards the purchase and the remainder required was borrowed. 

   (h)In the meantime, while they had lived in Brisbane the husband had various jobs as an electrician after his business went broke until 2002.  He may also have worked as a taxi driver for a time.  But he developed heart disease and after several heart attacks he had triple by-pass surgery in 2003.  He was in receipt of a disability pension for a time and this appears to have continued after the move to north Queensland.  As for the wife, she was not in paid work until 2001 or thereabouts when she did a short stint of telephone marketing.  She was primarily responsible for the day to day arrangements for the children and the household. 

   (i)They lived in the U home until late 2005 when it was sold for $405,000.  Some work was done on the property to prepare and present it for sale.  The wife says and it is accepted that she painted the interior, she chose the colours and tiles and fixtures, she did some landscaping, and she presented the home in an excellent condition for sale. 

   (j)They then purchased the property they now own at M for $305,000.  It is registered in their joint names.  The produce business, registered as P Business, is in the wife’s sole name.  They used funds received from the sale of the U home and they borrowed $115,000 from the credit union to complete the purchase and establish the business. 

   (k)Some of the funds available to them at the time was put towards the business or earmarked for that purpose.  But there is a dispute about other funds; in particular, the wife alleges the husband had $20,000 available which he spent on himself, purchasing a ‘work truck’ [which she says remains his property], and taking himself and two of the children for a holiday at the Gold Coast where he spent the remainder of the $20,000.  Certainly a truck was purchased and there was a holiday to the Gold Coast although the husband denies any waste or inappropriate use of funds.  On the other hand, it is alleged against the wife that she withdrew funds available to her in a bank account and used it for gambling.  In the course of cross-examination she was taken to various entries on bank statements, including withdrawals from hotels and the RSL - sometimes several on the same day or successive days.  She too denies any waste or inappropriate use of funds although she concedes she played the poker machines at times ‘with [the husband’s] encouragement’.  But whether funds were used for a holiday or some other purpose or gambling, there is nothing to support a finding against either that would have any impact on the decision here. 

   (l)After they moved to the M property in late 2005 the business was operated although it is not clear to what extent it was worked and certainly it is not apparent what income has been derived from it, either then or at any time since.  The tax returns might have given some indication of the scope of it but none were produced.  Some produce was sold by the roadside for cash but, again, there are no documents to indicate the scope of that. 

   (m)As for the responsibility of operating the business, the effect of the husband’s evidence is that it was shared; her duties including overseeing and preparing the produce and the sale of frozen produce; his duties including monitoring the irrigation, spraying, fertilizing pruning and general maintenance of the farm and well as keeping records.  The wife would have it, on the other hand, that it was her business, it was registered in her name, and he wanted nothing to do with it.  She maintains he was only present at the property for about 8 months from the time they bought it until their final separation and his departure in February 2007 [they had separated for a number of months from the end of 2005] while he says he was there for a longer period.  Whatever the case, nothing much turns on the point one way or the other.  During whatever period he was not there and the wife was therefore doing all the farm work, she also had the advantage of whatever income the farm produced. 

   (n)Cyclone Larry 2006 inflicted some damage to the property in March 2006 at a time when they were still separated and the wife received over $30,000 from one source or another as a result.  The husband maintains she has refused to account for it while she says it was used to buy a ride on mower and pay outstanding bills including a $2,000 payment to CNW for the husband’s electrical account.  The point was not explored beyond these positions. 

   (o)At one point they had people prepare a business plan at a cost of $10,000 which, it seems, has been paid over time though the plan was never implemented. 

   (p)From the time they moved to the M farm it is not apparent that either had any paid work elsewhere – the husband describes himself as a self-employed farmer in that period whereas the wife says she was a self employed manager of P Business – but he may have had an income from a disability pension and she undertook some casual work for some unspecified period in 2006/07 as an instructor in textiles and design. 

   (q)At the point of their separation in February 2007 the husband sold some horses [said to have been the children’s] and other property to Mr O and Ms B.  On his account of it, he did so to raise capital to buy materials to put in a crop and the property was not needed for the running of the farm or it could be sold for other reasons.  Apart from the horses it included a horse float, 4 tonne truck, slasher, ride-on mower and trailer.  He received a total of $8,000.  Done without the wife’s knowledge or consent, his actions led to a furore which saw police intervention and the husband’s departure from the farm and move to Brisbane.  On the wife’s view of it, his motive for selling the property had nothing to do with a crop, she maintains it was property necessary to the operation of the farm, and she also contends it was sold below value. 

   (r)Motives aside, there is no doubt the property was sold without the wife’s knowledge or consent but after hearing her cross-examined it is difficult to accept the property sold had any real bearing on the ability to operate the farm.  As for the price received, there could be no finding of sale for undervalue.  It may have been sold short but that would require evidence of its market value at the time and there was none.  The effect of Mr O’s evidence about the bargain he made is contrary to that.  He maintains the stock were in very poor condition, one horse had an infected jaw, and the equipment was rusting and not in good state.  Photographs [exhibit 9] tended to support his view of it, but again they do not establish whether or not fair value was paid.  Ultimately the relevant fact is that the husband received $8,000 which he retained.  I should add that in her formal application filed in these proceedings the wife had sought orders against both Mr O and Ms B for the return of the stock and equipment, but she accepted that could go nowhere here and any repercussions would be a matter to be taken into account between herself and the husband.  In my view that can best be achieved by adding back to their assets a notional receipt by the husband of $8,000. 

   (s)The husband alleges that when he left the farm there was 700 kilograms of frozen produce in the freezer said to be worth $7,000 which is denied by the wife – she says there was frozen produce but they would have been lucky to have had $200 worth in storage.  The issue was left at these bare assertions and nothing was put to explain or elaborate one side of the argument or the other.  If there was frozen produce worth between $200 and $7,000 it could properly be considered the wife’s to use to assist with the children’s support over the period since separation, given the level of child support paid post-separation which I shall mention shortly. 

   (t)He also alleges the wife retained cash of around $4,800 from farm gate sales.  She does not seem to dispute this; as she put it, she and the children were left with hardly any money and bills when he left.  That amount, too, can be regarded as properly used by her towards the children’s support post-separation. 

   (u)Generally speaking it can be said that each had a role in the children’s care and upbringing between their birth and the separation and in the running of the household generally; at least there is nothing to suggest the burden fell unfairly on one or the other. 

1. It is now almost two years since their separation. 

2. The husband has been living in rented premises in Brisbane and he has either been in receipt of a disability pension or he has earned income from employment as an electrician.  He has more recently been doing casual work as an electrician earning $1,100 - $1,200 per week after tax.  While in Cairns for the hearing in recent days the husband has experienced some difficulties with his health.  He went to hospital the evening before the first day of the hearing but he discharged himself the next morning to attend court and he was taken to hospital from the court during the course of the hearing with a suspected heart attack before being released.  It is said that hospital tests did not reveal any obstruction but he has been advised to have an angiogram when he returns to Brisbane.  He does not know what he will be doing in the future about work.  He has re-partnered and he lives with Ms N whom he met via the internet in early 2008; however, there is some doubt about her financial circumstances since she was in full time employment when she swore her affidavit while the husband says she is now unemployed. 

3. The wife has not re-partnered and she continues to live on the M farm.  She receives a government benefit from which she supports herself and the children.  That has been supplemented by some patchy child support paid by the husband which she estimates to have been a total of $1,200.  With nothing put in his case to counter it, that is accepted.  The current assessment is in the order of $79 per week but it is assumed this would change if the husband were to go back on the disability pension. 

4. The wife seems to have struggled financially to meet all her commitments.  While she has paid mortgage instalments and rates, both have fallen into arrears although she appears to have been able to forestall the credit union’s first step towards foreclosure.  That said, it is not apparent what income she has been able to derive from operation of the farm these past two years.  As she tells it, there is produce ready to be harvested now from 780 trees but it is not clear what, if any, plan she has to harvest and sell the crop, nor what she would probably receive as a result.  As for the history of business income, she says the cyclone inhibited the harvest in the first year they bought the business and then in the 2007 season she was depressed and could not attend to what was necessary.  However, it seems reasonable to conclude that she has been able to harvest some crops and make some sales.  Whatever the case, she has produced no tax returns, nor does her financial statement throw any light on it, and nor has she produced any records to give an indication of what income she has received from the farm, whether that be from sale to wholesalers or to markets or from the gate. 

Assets and liabilities

1. Before setting out the assets and liabilities a few observations about the list is necessary. 

   (a)The M property has an agreed value of $490,000.  It is not clear whether this includes the primary production business or the water licence, which they may or may not have been purchased for $10,000 when they bought the property.  As noted earlier, there is also a crop ready to be harvested and it is might be assumed the value of that is not reflected in the value given last July.  However, none of this presents a dilemma since the property is to be sold along with all marketable components.  For now, the figure adopted is $490,000. 

   (b)The estimate the wife gave in her financial statement for the value of the Pajero motor vehicle is $5,000 but she now says it would be worth $2,500 because it needs repairs.  Nothing is offered to support either figure but there was no cross-examination or direct submission about it and I have included it at $2,500. 

   (c)There are tools of the husband’s trade at the property, agreed to be worth $15,000, and it is also agreed he can take them when he returns to Brisbane along with a trailer valued by Mr L at $850.  This will reduce the value of the remaining plant and equipment from $32,700 to $31,850.  Those figures are reflected below. 

   (d)It is also agreed there is a debt to AGC in the amount of $6,000 which has to be paid and there is still some money owing to CNW although no particular amount is specified. 

   (e)There are unpaid rates of some unspecified amount which will be adjusted on settlement of the sale. 

   (f)There has been added back to the assets the $8,000 the husband received from the sale of property at separation – leaving the wife with any frozen produce crop and the $4,800 cash – there has also been added back what they both say they have received from the later sale of property. 

   (g)The wife has a very small superannuation entitlement which will be included with her assets rather than considered separately. 

   Joint assets to be sold

   Farm at M  490,000

   Plant and equipment – less trailer @ $850   31,850

   521,850

   Less

   Mortgage outstanding  104,165

   AGC   6,000

   CNW  NK  110,165 Est

   411,685

   Wife to retain

   Pajero motor vehicle   2,500

   Household furniture and items   5,000

   Sale proceeds of Landcruiser – W                 1,000

   Superannuation        920   9,420

Husband to retain

Sale proceeds of equipment and stock           8,000

Sale proceeds Hilux vehicle                  100

Tools     15,000

Trailer  850   23,950

445,055

Evaluation of contributions

1. The assessment of their entitlements by reason of their contributions may be through taking a ‘global’ approach or an ‘asset by asset’ approach [see High Court decision of Norbis v. Norbis (1986) FLC 91-712], depending on the particular circumstances of the case. In this case, it will be appropriate to take the global approach.

2. The parties’ relationship which began in 1992 lasted for about 15 years, with a period of separation in the later stage, and it is now nearly two years since they separated finally.  In that time they had three children whose current ages range from 14 to 10 years. 

3. At the outset the husband had a business of indeterminate value and the wife may have had some savings and/or a vehicle.  The business failed, he became bankrupt, and he went to work using his trade as an electrician.  He later suffered health difficulties ultimately leading to heart surgery which inhibited his capacity to earn an income and so he received a government benefit.  In the meantime, while the wife was not in paid work for other than a short period she was primarily responsible for the running of the household and the day to day arrangements for the children.  When they moved to north Queensland that general picture of their work and family arrangements continued until they purchased the farm and the produce business in late 2005.  While they both describe themselves as then becoming self-employed, it is not apparent what income the farm delivered to them but during the time they both lived at the farm they can both be seen as contributing in one way or another to whatever income they earned and to the family and general running of the household. 

4. Looking at their work and family circumstances generally, clearly the husband had an important role as the family income earner for relatively long periods of time during the relationship and when he was able to work using his trade he earned a relatively comfortable income.  On the other hand, while the bit of paid work the wife undertook was of no real moment, she had a complementary role in the home and with the children’s upbringing.  Both contributed to the working of the farm in one way or another when they were not living separately.  There is nothing in any of it to suggest any disparity of effort to have an impact here. 

5. What does stand out from the history is the inheritance the husband received in 1996/97 from his father’s Estate.  True it is that part of the sale proceeds were diverted to satisfying the claims of the husband’s creditors and to pay fees related to his bankruptcy.  It can also be said that the sale proceeds must have reflected the efforts both parties made to renovate and improve the property for the purpose of sale although it is impossible to say what part of the proceeds or what part of the $70,000 or so that was left for them could be attributed to their joint efforts in that direction.  But the fact remains they satisfied debts and received more than $70,000 only because there was property available in the first place through the husband’s inheritance.  That is a contribution by him which is not matched in any of the pre-separation history by a like contribution from the wife. 

6. Putting aside what was applied towards debt, the amount that became available to them was not an insignificant sum - it represented, for example, more than 37% of the purchase price of the home they acquired for themselves at S.  Having used the balance of the inheritance to purchase their first home, they both worked to improve it and sold it for considerably more than they paid; what they received can be traced into their next home at U which they also improved and sold for considerably more than they paid; and that in turn can be traced into the M property and business which has been valued at considerably more than they paid.  The point is that while they obviously bought wisely and both worked on the properties acquired to improve them, the husband’s inheritance gave them their first entry to the residential property market, providing a significant boost towards the purchase price.  Even allowing for the wife’s efforts in doing the work that contributed to the sale price achieved along with his own efforts, it plainly deserves some weight as a contribution by the husband. 

7. When all these various contributions over the years to separation are weighed in the balance, the inheritance factor tips the weight in the husband’s favour in my assessment.  There can be no precision about the measure of the weight – it is not a mathematical assessment - but in my opinion it would be properly recognised by a contribution assessment in the order of 65% to the point of their separation; that is, by opening up a differential or gap of 30% between their respective contributions. 

8. Turning to the past two years or so, while the husband has had the cost of rented accommodation elsewhere, the wife has remained in occupation of their jointly owned property at M and she has not shared with him any of the benefit she got from frozen produce available on separation, the $4,800 or thereabouts then available from produce sales, or whatever income the farm has generated in the meantime.  While these considerations can be seen as benefiting her, regard is also had to the fact that the farm has been the residence of the children and she has been responsible for their day to day care and supervision for the overwhelming majority of that time.  Added to that, the husband has paid little by way of child support.  Further, while the mortgage and rates have fallen into some arrears, she has for the most part paid the mortgage instalments and she has arranged with the council to pay something regularly off the outstanding rates. 

9. While none of this lends itself to any precise calculation, and nor is that necessary, in my assessment these considerations favour the wife.  That said, her failure to provide some proper evidence of the income earned from the farm over the last two years suggests her entitlement for post separation contributions ought not to be adjusted because that failure should lead to her being seen as having had sufficient funds from the property to support herself and the children notwithstanding the insufficient child support.  There is something in this.  Nonetheless, some adjustment is still necessary to recognise her discharge of responsibilities over that period.  In my opinion her contribution entitlement should be adjusted upwards, albeit in a relatively small measure, to 37.5% leaving the husband with a contribution entitlement of 62.5%. 

10. The husband’s counsel argues that contributions should be seen as favouring the husband, which this assessment does, but the argument for an assessment in the range of 65% - 70% overall tips the scales just a bit too heavily in his favour in my opinion, all things considered. 

Section 75(2) factors

1. There are some relevant factors here. 

2. Absent any further adjustment, the property they would each receive would be 37.5% to the wife and 62.5% to the husband of a net asset pool of around $445,000.  Neither has any property other than what has been taken into account - at least so far as is apparent from the evidence here - and neither has any apparent resources. 

3. The husband has a trade and a history and experience of working as an electrician from which he has been able to earn good money.  He does have a history of health problems, heart disease and a triple by-pass, but he has recently worked as an electrician, albeit casual work, from which he was able to earn up to $1,200 per week after tax.  Developments with his health during the past week are not the subject of any evidence despite it being abundantly clear that he could have sought an adjournment to allow his condition to be assessed and its implications for his case taken into account.  He did not take that option, no doubt for understandable reasons, but it does make the approach to assessing his future earning capacity rather difficult.  In the final analysis his election to run the case without that evidence means his position should be assessed as it would have been had these developments not occurred; that is, he is capable of working in his trade at least on a casual basis and earning around $1,100 - $1,200 per week.  At 51 years of age, provided he maintains his current health, he still has a number of working years ahead of him.  His relationship with Ms N, whatever her employment, seems to be ongoing and therefore it is likely he will have the advantage of being able to share household expenditure with her as his partner. 

4. The wife, on the other hand, admits to being in good health.  She also says she is going to look for work and wants to find work in the future.  What that will be and whether she will be successful is difficult to say since she has no identifiable employment qualifications and a very limited history of experience in paid work.  If she does succeed, almost inevitably it will be unskilled work of some kind and she will be paid accordingly.  Since she has not re-partnered she will be the sole income earner in her household, at least so far as her future can be predicted, and therefore she will be solely responsible for all household expenditure. 

5. If the husband does continue to undertake casual work, which it is reasonable to find, and his relationship with Ms N lasts, which he is confident it will, then his earnings will be much higher than whatever the wife could earn should she find employment and he will be better off by being able to share household expenditure. 

6. The wife has a superannuation entitlement arising from some work she did at one stage, but it is a very small minimal amount.  It is possible both will be entitled to government benefits in the future either by reason of responsibility for the children or disability. 

7. As for child support in the future, no doubt that will continue to be the subject of application through the Child Support Agency.  The child support paid in the past two years has been a patchy and inadequate contribution towards the children’s support and it is difficult to predict with any great confidence what will be paid in the future.  Whatever assessments are issued against the husband in the future, based on their respective earnings, the sum assessed will either be paid from his earnings or deducted from any entitlement to government benefits as the case may be.  Therefore the wife is likely to receive some financial assistance towards the children’s upbringing.  Yet even recognising that, there are three children with financial needs to be met over a good many years yet to come and if the history is any indicator the probabilities are that the wife will remain responsible for the lion’s share of those financial needs. 

8. This is not the place to canvas the very troubling history of parental care that has been available to these children, from both parents, but as things currently stand it has been agreed the children will continue to live with their mother and they will not see their father for some months after which some holiday time will be spent regularly in his care.  So far as can be foreseen from here on they will spend the majority of their time in their mother’s care. 

9. In conclusion, there are two factors that favour an adjustment in the wife’s favour.  The first is the likely disparity of earning capacity in the future favours and the second is the much greater responsibility she will have, financial and non-financial, for the children’s care into the future.  With the youngest of the three children being just 10 years of age, there are quite a number of child rearing years still ahead.  This consideration, and to a lesser extent the disparity of future earnings, tips the scales solidly in her favour and would be recognised by a further distribution to her of 17.5% of the net assets.  Calculated on net assets of $455,055 this adjustment amounts to $79,635. 

10. This would bring the wife’s entitlement overall to 55% of their net assets and the husband’s to 45%. 

Effect of proposed orders

1. That assessment means the wife would receive assets to the value of $250,280 and the husband $204,775 although of course those calculations are based on the figures for property, some of which is to be sold.  I am satisfied that orders to this effect will be just and equitable in all the circumstances.

Form of orders

1. Given the foreshadowed sale, it will be appropriate for the orders to be expressed so as to give to the parties 55% and 45% respectively of the net proceeds of sale after deduction for the usual costs of sale and adjustments, the repayment of the amount outstanding under the mortgage, and repayment of the debts to AGC and CNW whatever they may be. 

2. The parties would otherwise retain the other assets set out earlier so some adjustment in the wife’s favour will be necessary to reflect their respective entitlements.  The wife’s other assets amount to $9,420 while the husband’s amount to $23,950, making a total of $33,370.  The husband therefore will have to pay the wife this amount:

   55% of $33,370  $18,355
   Wife retains   $9,420
   Wife to receive further   $8,935 [say, $9,000]

3. That can be paid on settlement of the sale of the property when other distributions are made. 

4. As for the sale itself, the orders the husband sought formally are for sole occupation of the property while he takes responsibility for the sale.  But there were no submissions directed to that and I can see no reason for it to occur, at least not while the wife, who has been in occupation since separation, is not doing what is necessary to facilitate a sale as soon as practicable.  Should developments prove otherwise, the current situation might have to change but in the meantime the wife will remain in occupancy pending the sale is settled. 

5. The wife has mentioned some working needing to be done to present the property in the best possible light but that was not argued or proposed in any formal way and the husband’s attitude about it is not apparent.  At this stage, therefore, they can agree to do work to maximise their return mindful of the expense and delay is necessary for that purpose; if they do not agree, then the sale will proceed without it.  It will be a matter for them. 

6. There is reference in the orders sought by the husband to payment of certain money to the solicitors for the husband in reimbursement for valuations.  This was not mentioned in closing addresses and I am uncertain what is behind it.  Obviously if there is money to be paid for valuations it should be done and no order should be necessary to see to it.

1. There is also reference to payment of the husband’s legal fees and outlays being paid before any distribution of sale proceeds between the parties; however, as I said to his counsel at the outset of the hearing responsibility for costs is separate from and any consideration of that must follow this decision. 

2. As for the terms of the listing and the sale, the orders set out cover what is necessary to bring about the sales and finalise the parties’ financial relationship.  If something else is necessary then that can be agreed or further orders can be made directed to implementation.  Of course if further proceedings about implementation become necessary, each will be at risk of having to pay both parties costs of the exercise. 

3. For those reasons the orders are as set out earlier. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: