Pickering and Pickering

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING

[2009] FamCA 1025

FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests – determination of the asset pool – whether amounts withdrawn by the husband from a line of credit should be added back – contributions of the parties – where the husband sought that his contributions be assessed at 80% – where there is a danger in comparing contributions that can be quantified in money terms with those that cannot – where an adjustment of 5% is appropriate due to the husband’s greater responsibility for the care and support of the parties’ children – asset pool to be divided 57.5%/42.5% in favour of the husband

Family Law Act 1975 (Cth) ss 75(2) & 79

Khademollah and Khademollah (2000) FLC 93-050
Omacini and Omacini (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569
Mallet v Mallet (1984) FLC 91-507
Ferraro and Ferraro (1993) FLC 92-335
Collins and Collins (1990) FLC 92-149
Waters and Jurek (1995) FLC 92-635
Phillips and Phillips (2002) FLC 93-104

APPLICANT:

Mr Pickering

RESPONDENT:

Ms Pickering

FILE NUMBER:

ADF

1919

2005

DATE DELIVERED:

28 October 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

5 – 9 April 2008
22 & 23 October 2008

15 September 2009
20 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr T Birchall

SOLICITOR FOR THE RESPONDENT:

Nicholls Gervasi

Orders

That from the net proceeds of sale of the property at D in the sum of THREE HUNDRED AND NINETY TWO THOUSAND NINE HUNDRED AND TWENTY SEVEN DOLLARS AND THREE CENTS [$392,927.03], the wife receive the sum of ONE HUNDRED AND NINETY SEVEN THOUSAND EIGHT HUNDRED AND THIRTY DOLLARS AND FIFTY THREE CENTS [$197,830.53] and the husband receive the sum of ONE HUNDRED AND NINETY FIVE THOUSAND AND NINETY SIX DOLLARS AND FIFTY CENTS [$195,096.50] (less the amount of $2530 required to be paid by the husband to the wife pursuant to paragraph 12 of the order made by this Honourable Court on 22 October 2008, which amount the wife shall receive).
That the husband forthwith pay all Telstra accounts for the business P Business and indemnify the wife and keep her indemnified against payment of the said accounts.
That the husband retain as his sole property absolutely free of any claim, right, interest, demand or entitlement of the wife the following:
(a)the sale proceeds of the caravan;
(b)the sale proceeds of the cows;
(c)the sale proceeds of the single cab utility, the Hansa wood chipper, the off road motor bike, and the Husqvarna ride on lawn mower;
(d)the twin-cab truck with crane;
(e)the husband’s furniture and household effects;
(f)the husband’s sporting cards;
(g)the husband’s coins;
(h)the husband’s superannuation entitlements with ING and Westpac;
(i)the money withdrawn by the husband from the Westpac line of credit for the husband’s benefit;
(j)all other assets, real or personal in the name of or in the possession of the husband.
That the wife retain as her sole property absolutely free of any claim, right, interest, demand or entitlement of the husband the following:
(a)the sale proceeds of the Pajero motor vehicle;
(b)the wife’s furniture and household effects;
(c)the wife’s IOOF superannuation entitlements;
(d)the money withdrawn by the wife from the Westpac line of credit for the wife’s benefit;
(e)all other assets, real or personal in the name of or in the possession of the wife.
That forthwith the husband deliver up to the wife all of the wife’s photographs taken before the parties met and the husband make available to the wife all family photographs and videos for the wife to copy and then return to the husband.
That all applications and responses be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MR PICKERING

Applicant

And

MS PICKERING

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for property settlement.
When the trial in this matter commenced on 5 May 2008, both parties also sought parenting orders with respect to their three minor children. However, when the trial resumed before me on 22 October 2008 after being adjourned part-heard, the parties were able to resolve the issues relating to the care of their children. I then made final parenting orders by consent. Those orders provided, inter alia, for the parties to have equal shared parental responsibility for the children M, H and S, for those children to live with the husband and to spend time with the wife on alternate weekends during school terms from the conclusion of school on the Thursday until the commencement of school on the Monday, for one half of each school holiday period and on special occasions. M’s time though with the wife is subject to her wishes.
On 16 January 2008 the wife filed an Amended Response to an Application for Final Orders. On 4 February 2008 the husband filed an Amended Application for Final Orders. Both parties sought an order in identical terms with respect to property settlement, namely:
That in full and final settlement of property matters between the parties the net assets of the relationship are divided as may be agreed between them or in default of agreement as ordered by this Honourable Court.
I was tempted to simply make final orders by consent in these terms but deleting the reference to what should be done in default of agreement. However, during the course of the trial the parties finally found it possible to at least make an attempt to specify the orders that they sought.
The husband who was unrepresented sought orders to the effect that he be able to retain the property at D, that he retain the business P Business, and that most of the other items of property of the parties be divided 80%/20% in his favour. However, with many of these items there was no valuation provided by either party and with some of the items the husband’s case was that they had no value at all. Thus, the husband proposed that certain of these assets be sold with the proceeds of sale being divided 80%/20% in his favour, and that he retain other assets. With the liabilities of the parties his position was that the parties should be jointly responsible for them but it was unclear whether that was on an equal or some other basis. With the superannuation entitlements of the parties the husband had little idea as to what should be done, but doing the best I can, it seemed to be his case that each party should retain their respective entitlements. He certainly did not promote a splitting order.
The wife, who was represented, sought orders to the effect that all of the property of the parties be divided equally between them subject to certain “add-backs”. That result entailed the sale of some of the items of property and adjustments in relation to other items of property. With the superannuation entitlements of the parties the wife’s counsel initially sought a splitting order but then changed his position to one where each party should retain their entitlements with the value of the same being included in the one asset pool together with the non-superannuation assets.

Factual background

The husband was born in 1964 and is now aged 45 years.
The wife was born in 1965 and is now aged 43 years.
The parties met in 1986.
In October 1987 the parties purchased a property together at E. The parties used their savings for the deposit, and obtained a loan of $42,000 secured by way of mortgage over the property.
In late 1987/ early 1988 the parties commenced to live together.
The parties married in October 1988. At the time of the parties’ marriage the wife was working as an Administration Officer with T Business and the husband was employed at B Business.
In 1989 the parties’ eldest daughter R was born and she is now aged 19 years.
In 1991 the husband ceased his employment with B Business. The husband says that he received a lump sum payout of his entitlements of approximately $20,000. The wife asserts that the husband received no more that $10,000.
In 1991 the husband says that he obtained a personal loan to start up a business in partnership with his brother, Mr N Pickering, known as W Business. According to the husband the loan was repaid in the same financial year. The wife says that she cashed in an insurance policy to help fund the start up costs of this business.
In June 1992 the parties purchased a property at K for $115,000 using the E property as security for a loan as well as the K property. They moved into this property and rented out the E property.
In 1993 the husband and his brother incorporated the business setting up W Pty Ltd with a third party. The shares in the new company were held by the husband and wife (42.5%), the husband’s brother N Pickering and his wife (42.5%) and Mr and Mrs G (15%). The husband, N Pickering and Mr G were the directors of the company. Another company, WP Pty Ltd was also set up either at this time or subsequently.
In September 1993 the parties’ daughter M was born and she is now aged 16 years.
In 1993 while the wife was pregnant with M her position with T Company became redundant.
In 1994 the wife received a redundancy payment from T Company of $18,500 and superannuation entitlements of approximately $36,900. This money was put towards repayment of the mortgage.
The husband and the wife established a partnership business known as P Business. According to the wife this business commenced in 1995. The husband contends though that in September 1998 he ceased his employment with W Company and formed the partnership business with the wife. The business was operated from the home of the parties.
In June 1995 the parties’ son H was born and he is now aged 14 years.
In October 1996 the parties purchased an 88 acre property at D for $171,000. A loan was obtained secured by mortgage against that property and the K property.
In November 1997 the parties purchased a number of adult cows for $250 per head and placed them on the property at D.
In November 2000 the parties sold the property at E for $73,500. The net proceeds of sale were used to reduce the mortgage secured over the K property.
In December 2000 the parties’ youngest child S was born and she is now aged 8 years.
In 2004 the parties leased a warehouse from which they thereafter operated P Business.
In September 2004 the parties sold the property at K for $240,000. The net proceeds of sale were applied to discharge in full the mortgage against the D property leaving a credit of $87,000 in the home loan account. This account subsequently became in effect a line of credit secured against the D property and they drew on that to fund the cost of erecting sheds, water tanks and to connect electricity.
In November 2004 the parties moved from the K property and commenced living in a caravan on the D property.
On 16 February 2005 the parties commenced proceedings in the Supreme Court of South Australia as joint plaintiffs against WP Pty Ltd, W Pty Ltd, N Pickering and Mr G. The husband and wife brought the proceedings under the Corporations Act 2001 (Cth), claiming the defendants had “engaged in conduct which is oppressive to, unfairly prejudicial to, and unfairly discriminatory” against them. The parties sought, inter alia, an order that N Pickering and/or Mr G and/or W Business and WP Business purchase their shares in the companies or in the alternative that the companies be wound up.
On 14 April 2005 the parties separated. At the time of separation the parties were living in a caravan on their D property. The wife left the property and went to live with her parents. The husband remained living at the property with the parties’ children. Shortly after separation the husband was advised by the local Council that he was unable to remain living on the property without commencing to build.
The wife ceased working in the business a short time after separation. She subsequently commenced employment with Y Company.
On 20 April 2005 the husband purchased a truck with a crane for approximately $33,000.
In May 2005 both parties moved into separate rental accommodation, the wife at K and the husband at V.
In May 2005 the wife met Mr X through her employment with Y Company. Mr X also worked there.
In July 2005 the husband commenced a relationship with Ms F.
In August or September 2005 the wife and Mr X commenced to live together.
In October 2005 the parties’ eldest child R went to live with the wife.
On 30 November 2005 the parties attended mediation in relation to the Supreme Court proceedings. A settlement agreement was executed which provided, inter alia, for the sale of the assets and undertakings of the W Group (comprising W Pty Ltd and WP Pty Ltd) and for the appointment of a liquidator.
On 15 December 2005 the husband filed an Application for Final Orders in this Court seeking parenting orders.
On 10 January 2006 the partnership between the husband and wife operating as P Business was dissolved by the husband. The husband has continued to operate the business as a sole trader since that time.
On 13 January 2006 the husband leased a dual cab Nissan Navara motor vehicle.
In February 2006 the husband sold 18 cows for $9874.
On 14 February 2006 interim orders were made for R to live with the wife and M, H and S to live with the husband.
On 17 February 2006 the wife filed a Response to an Application for Final Orders seeking orders with respect to both children’s issues and property settlement.
On 22 February 2006 orders were made for M to live with the wife.
In April 2006 the husband sold the parties’ caravan for $2800.
On 1 June 2006 the parties’ daughter R and her boyfriend (who is also the son of Mr X) started living with the husband.
In October 2006 arrangements were made with Mr L of a Business Brokerage to sell the W Group pursuant to the agreement reached. According to the wife, the sale process was agreed to on 2 December 2006, pursuant to which all offers for the purchase of W Pty Ltd and WP Pty Ltd were to be received by 15 October 2007.
On 27 December 2006 the wife traded in the Mitsubishi Pajero she retained after separation, receiving $10,990.
In approximately March 2007 the wife ceased full time employment and commenced working part time.
In April 2007 the parties’ child M resumed living with the husband.
On 24 July 2007 the wife became engaged to Mr X.
By October 2007 no offers for the purchase of the W group had been received. On 25 October 2007 an alternative arrangement was proposed for the sale of the W Group. Pursuant to the proposal, the new owner of the land where the business was operated was to buy back the remaining years on the lease for $90,000, effective from 14 November 2007 with occupation by the end of November 2007. An employee of W Group, Mr T, was to buy the stock for approximately $180,000. The remaining plant and equipment was to be sold and the A Store stock sold down over December 2007. The W name was to be assigned to Mr T and he was to run the A store from 1 January 2007. The shareholders were to be paid out and the two W companies liquidated.
The husband and the wife both signed the agreement with Mr T and the other shareholders.
In December 2007 the W Group was sold. However, the husband claimed that the sale occurred without his consent, and in early 2008 he refused to sign off on the proposed payout to the shareholders.
On 16 January 2008 the wife filed an Amended Response to an Application for Final Orders seeking parenting orders and a general order for property settlement.
On 4 February 2008 the husband filed an Amended Application for Final Orders seeking parenting orders and a general order for property settlement.
In March 2008 the defendants in the Supreme Court proceedings (WP Pty Ltd, W Pty Ltd, N Pickering and Mr G) filed an interlocutory application seeking the variation of previous orders of the Court to permit the payment of dividends to shareholders. It was also sought that the action be dismissed with no order as to costs and that Mr C be appointed liquidator of the two companies.
On 5 May 2008 the trial in this matter commenced before me with respect to both children’s and property issues. The trial was unable to be completed in the five days allocated and was adjourned part heard.
On 22 October 2008 the trial resumed. To repeat, at that time the parties were able to reach agreement with respect to children’s issues and I made final orders in that regard by consent. I also made an order by consent with respect to costs. The husband was to pay to the wife the sum of $2530 with such amount being paid at the same time as the payment to her by way of property settlement.
On 24 February 2009 a divorce order was made in the Federal Magistrates Court, and became absolute on 25 March 2009.
On 2 September 2009 I was advised that the property at D had been sold for $560,000 (Exhibit W16). However, no other information was forthcoming and accordingly I convened a directions hearing on 15 September 2009. At that hearing it was confirmed that the property had been sold for $560,000 with settlement due on 25 September 2009. No settlement statement was yet available though and accordingly the case was adjourned to 20 October 2009.
On 7 October 2009 I received a letter from the wife’s solicitors to which was attached the settlement statement. Those documents have been put before me by consent and I have marked them as Exhibit W17.
In the said letter I was informed that contemporaneously with the sale of the property the parties sold “the white ute, ride on mower, motor bike and chipper” for $2300, and that amount was retained by the husband.
Apart from the usual costs of sale, the Westpac mortgage was discharged from the proceeds of sale and $8387 was paid to the Legal Services Commission in satisfaction of the Commission’s claim in relation to fees incurred by the husband.

The current circumstances of the parties

The wife

At the time of trial the wife was living with her partner Mr X in rented premises. They are engaged to be married but no date had been set for that marriage.
The wife was employed for two and a half days a week, earning approximately $18,000 - $19,000 per annum according to her Financial Statement filed on 16 January 2008.
The wife’s partner Mr X is self employed as a technician. He commenced his own business in April 2007. The wife states Mr X had not been paying himself a wage at the time of trial as his business was not yet earning sufficient money, but that he drew $300 per week from the business to contribute to household expenses.
The wife had been assessed to pay child support to the husband of $77.58 per month for the period from 14 May 2007 to 2 July 2008.
Pursuant to the order made by consent on 22 October 2008, M, H and S were to spend time with the wife on alternate weekends from the conclusion of school Thursday until the commencement of school Monday, for half of school holidays and on special occasions.

The husband

At the time of trial the husband was also living in a rental property at V. The children M, H and S live with the husband. He also continued in a relationship with Ms F although they did not live together.
The husband continued to operate the business P Business as a sole trader.
In his Financial Statement filed on 4 February 2008 the husband stated he was earning $1089 per week and that his personal expenditure amounted to $999 per week. The husband pays the private school fees for the three children.

The issues in dispute

In relation to the assets and liabilities of the parties the following disputes emerged from the evidence:
74.1Whether the husband would be able to retain the property at D. The answer to this question was going to be determined by the overall percentages that I fixed for the distribution of the net assets. However, that issue has now been resolved and by way of further evidence I have been informed that that property has been sold for $560,000.
74.2The final position in relation to the Supreme Court proceedings between the parties and the W Group and others. As far as the wife was concerned the proceedings had been resolved and the parties were due to receive the sum of $25,816 from the proceeds of sale of the Group. As a result the solicitors who had acted for the parties were prepared to reduce their outstanding accounts from $31,156 to the same amount of $25,816.
The husband initially indicated that he was not prepared to accept this result and he asserted that he had a claim for $700,000 which he wanted to pursue. However, at the conclusion of the trial the husband indicated that the claim had been settled and it was unnecessary to include any item in relation to this issue in the asset pool or in the liabilities. The wife obviously agreed with that position.
74.3There was no valuation provided by either party of the twin-cab truck with crane purchased by the husband just after separation. This was despite there being ample time, not only in the lead up to the trial, but during the lengthy adjournment. In any event, the wife sought to promote a “valuation” of $29,260 taken from the depreciation schedule of the business, but in his final address the husband sought that the vehicle be sold and the proceeds distributed between the parties. Given that the wife did not wish to retain this vehicle, she could not cavil with this result. However, at the hearing on 20 October 2009, it was agreed between the parties that the husband could retain this truck at a value of $15,000.
74.4There was also no valuation presented by either party of the white single-cab utility, despite there being ample time to do so both in the lead up to the trial and during the lengthy adjournment. Again the wife sought to promote a “valuation” of $1400 based on the depreciation schedule of the business, but the husband’s evidence was that this vehicle was not registered and had minimal value, maybe $100. I note that this vehicle has now been sold but I have not been told of the sale price.
74.5There was no valuation presented by either party of the 1991 off-road motor bike, despite again there being ample time to obtain one. The wife proposed that it be sold and the proceeds divided. The husband simply said that it was purchased for $500 and was not worth anything at the time of the trial. Indeed, he also suggested that it was a vehicle used by the children and should not be included in the asset pool. Again this appears to have been sold, but I do not know the sale price.
74.6There was no valuation presented by either party of the wood chipper, despite again there being ample time to do so. The wife sought to promote a “value” of $2200 based on the depreciation schedule of the business, but in his final address the husband sought an order that this be sold and the proceeds divided. Again, because the wife did not want to retain this item for herself she could not oppose this course. This item too has now been sold.
74.7There was no valuation provided by either party of the ride-on lawn mower, again despite there being ample time to obtain one. The wife sought to promote a “value” of $2000 based on the depreciation schedule of the business, but the husband ultimately sought an order that this be sold and the proceeds divided. Again, the wife had to accept this result. This is the final item sold at the same time as the sale of the property.
74.8With P Business the husband assigned a figure of $35,000 to this business in his Financial Statement filed on 4 February 2008. Thus the wife sought to promote that as the value of the business. However, there was no formal valuation presented by either party and the husband’s evidence was that figure represented his estimate of the value of the plant and equipment and vehicles. His position was that there was no goodwill.
74.9The husband retained the majority of the furniture when the parties separated. The wife used a credit card and drew down money from the parties’ account to purchase items of furniture and household effects to set herself up in her rented accommodation. No valuation of these items was presented to the Court, but the wife sought to include a figure of $2500 in the asset pool for the husband’s furniture. That was a figure included by the husband in his Financial Statement filed on 4 February 2008.
74.10The wife sought the return to her of certain personal effects, despite being told by the children that the husband had burnt all of her possessions in a bonfire. The husband’s case is that he returned to the wife all of the personal effects that she wanted and he then burnt the rest.
74.11The wife in her oral evidence suggested that the husband had a sporting card collection and a coin collection that he had not disclosed. The husband agreed that he had some coins and some sporting cards but observed that they could not be described as “collections”, and in any event they were of minimal value. There was no valuation of these items presented in evidence.
74.12The parties were ad idem that the only liability to be taken into account was a line of credit with Westpac of $131,000 secured by way of mortgage over the property at D. However, the wife’s case was that she should not have to bear any responsibility for a number of debits to that account made after separation by the husband, and that the amounts involved with these debits should be “added-back” by the husband reimbursing her for one half of each amount out of his share of the property. The husband opposed this. I also note from exhibit W17 that by the time of the sale of the property this mortgage had increased to $137,930.54.
74.13The wife submitted that the husband had failed to provide full and frank disclosure of the transactions through the bank accounts that he operated after separation and that he failed to answer requests from the wife’s solicitors to provide that disclosure. The husband suggests that he did not receive the correspondence from the wife’s solicitors.
74.14The wife being the signatory to contracts with Telstra to provide a landline and 1300 numbers for P business received an account from Telstra after separation in the sum of $695.25. The wife suggests that the husband should be responsible for this account but the husband says otherwise.

In relation to the respective contributions of the parties there are a number of issues in dispute as follows:
75.1The husband claims that he made a far greater contribution overall than the wife based on his substantial financial contribution by way of income. The wife accepts that the husband has made a greater financial contribution but she says that that is more than matched by her non-financial contributions.
75.2There is no agreement about some specific issues such as how much the husband received on the cessation of his employment with B Company, and the extent of the husband’s contributions as homemaker and parent.
75.3The wife says that the husband prevented her from fulfilling her role as a parent after separation. She says that initially the husband prevented the children from spending time with her and subsequently made it difficult for them to spend time with her. The husband denies this.
75.4The husband says that since separation he has made all mortgage repayments and paid all rates, taxes and other outgoings including insurance premiums in relation to the D property. He initially sought reimbursement by the wife of these costs, but ultimately he seemed to accept that that was a contribution issue. Similarly, he sought reimbursement of school fees that he has paid for the children, but again that is clearly a contribution issue, as is his claim to be given credit for maintaining the D property subsequent to separation.
In relation to s 75(2) of the Family LawAct 1975 (Cth), there is a dispute in the sense that the wife submits that there are no factors that justify any adjustment in favour of either party, but the husband suggests that there are factors that justify an adjustment in his favour. For example, he points to the circumstance that he has the children living with him for 10 out of every 14 nights, and that the wife has a partner who the husband says should be contributing more to the wife’s household than he in fact does.

The principles applicable to the matters before the Court

The provisions of s 79 of the Act define the Court's power and obligations in determining applications for property settlement. The Court has a discretion to make orders altering the interests of parties in property, provided the Court is satisfied that such orders are appropriate, just and equitable.
The Court is obliged by the provisions of s 79(4) of the Act to take into account the following matters:
78.1The financial and non-financial contributions 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 (sub-paragraph (a) and (b));
78.2The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));
78.3The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));
78.4The matters referred to in s 75(2) so far as they are relevant (sub-paragraph (e));
78.5Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));
78.6Any child support payable (sub-paragraph (g)).
Accordingly, in assessing the entitlement of each of the parties for property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in s 75(2).
According to guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence, that is:
80.1Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage.
80.2Secondly, the Court must consider all relevant contributions of each of the parties, and, where possible, the Court should assign an entitlement of each of the parties arising as a result of those contributions.
80.3Thirdly, the Court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions having regard to the relevant s 75(2) factors.
80.4Fourthly, the Court takes a step back and considers whether the proposed orders are just and equitable.

The evidence

The husband was unrepresented. He relied on his affidavits filed on 4 February 2008, 5 May 2008, and his Financial Statement filed on 4 February 2008. He gave evidence and was cross examined.
The wife was represented by Mr Birchall of counsel. She relied on her affidavits filed on 16 January 2008 and 29 April 2008 and her Financial Statement filed on 16 January 2008. She gave evidence and was cross examined.
In giving his evidence the husband was evasive and he consistently sought to deflect the questions asked. Further I have serious concerns about his credibility. He clearly has no time for the wife’s partner Mr X, and although the issues that the husband raised about him including his criticism of the wife for exposing the children to him related to the parenting orders that should be put in place, because that dispute and the dispute about property settlement were naturally heard together, this coloured his evidence generally. As a result, I prefer the evidence of the wife to that of the husband wherever there is a conflict. The wife struck me as being quite genuine in her evidence but I do concede that she was not necessarily always able to recall the detail of events.
One important area where I do not believe the evidence of the husband is his claim that he did not receive the email from the wife’s solicitors of 28 April 2008 requiring information from the husband as to the withdrawal of a total of $61,000 from the line of credit in the three months following separation. I find that the husband chose to withdraw substantial amounts of money from the line of credit immediately following separation without telling the wife, including depositing a total of $25,000 into a personal account that he commenced in July 2005, thinking that the wife would be responsible for at least half of these withdrawals given that the line of credit was in joint names and secured by way of mortgage over the jointly owned property at D. This is made plain by the circumstance that there were no withdrawals from the line of credit from 28 October 2004 to 10 March 2005, in other words prior to separation, and by the fact that there was a credit balance of $39,590.49 in the business cheque account at the time of separation. The husband’s failure to provide full and frank disclosure of these transactions was part of an attempt to cover up his actions in this regard.

The assets, liabilities and financial resources of the parties

At the date of commencement of cohabitation – late 1987/early 1988

The parties had just purchased a property together at E. They were both working full time and they used their savings for the deposit and obtained a loan of $42,000 to complete the purchase.
There is no evidence of what other assets, liabilities or financial resources the parties brought into this relationship.

At the date of separation – 14 April 2005

The assets and liabilities of the parties were as follows:
Assets
The D property  N/K
1989 Mitsubishi Pajero motor vehicle  N/K
Single cab utility  N/K
1991 off-road motor bike  N/K
Wood chipper  N/K
Caravan  N/K
Ride on lawnmower  N/K
Business – P Business  N/K
Commonwealth Bank Premier business account  $39,590.49
Coins  N/K
Sporting cards  N/K
Household furniture and effects  N/K
Claim against W Group of Companies and others  N/K
The wife’s superannuation entitlements with IOOF  N/K
The husband’s superannuation entitlements:
- ING  N/K
- Westpac  N/K
Liabilities
Westpac line of credit  $12,064
Creditors of P Business  N/K
Legal fees re claim against W Group of Companies and others               N/K
Credit cards  N/K
In relation to these assets and liabilities I make the following comments:
88.1The husband remained living with the children on the property at D whilst the wife moved to live with her parents following separation. In May 2005 both the husband and the wife found separate rental accommodation.
88.2The wife took the Mitsubishi Pajero motor vehicle with her. That vehicle had been purchased for $29,500 on 20 October 2004. On 27 December 2006 the wife traded this vehicle in receiving $10,990.
88.3The husband retained all of the household furniture and effects of the parties. The wife took a small suitcase containing some of her clothing and personal effects.
88.4The wife continued to work in the partnership business for a short period of time. The husband though retained that business including the plant and equipment and vehicles and he continued to operate it and receive the benefit of the same.
88.5The husband continued to operate the Westpac line of credit and the Commonwealth Bank Premier business account.
88.6The husband subsequently sold the caravan in which the parties had lived on the D property for $2800, and the cows on that property for a total of $9874.

At the date of the hearing

I find that the relevant assets and liabilities of the parties to be taken into account are as follows:
Assets
The gross proceeds of sale of the D property  $560,000
The sale proceeds of the Mitsubishi Pajero motor vehicle                $10,990
The sale proceeds of the caravan  $2,800
The sale proceeds of the cows  $9,874
The business P Business:
- Twin-cab truck with crane  $15,000
- Nissan twin-cab utility (leased)  Nil
- Single cab utility, wood chipper, and ride on mower
(all sold with the 1991 off road motor bike)  $2,300
- Debtors  N/K
The husband’s household furniture and effects  $2,500
The wife’s household furniture and effects  N/K
The husband’s sporting cards  N/K
The husband’s coins  N/K
The wife’s superannuation entitlement with IOOF (as at 14/1/08) $6,333.79
The husband’s superannuation entitlements with:
- ING (as at 7/5/08)  $5,726.57
- Westpac (as at 7/5/08)  $22,522.06
Money withdrawn from Westpac line of credit  $57,845
Liabilities
Westpac line of credit (secured against the D property)             $137,930.54
Costs of sale of the D property (including adjustments
for rates and taxes)  $20,755.43
The creditors of P business  N/K
In relation to these assets and liabilities I make the following comments:
90.1The parties chose not to include in the asset pool or even to take into account assets such as the wife’s current motor vehicle, the wife’s current Bank SA account, the husband’s current bank account, all current liabilities such as the wife’s visa credit card, the husband’s income tax liability, his credit card debts, or the husband’s debt to Centrelink.
90.2The D property has now been sold, and this has been the subject of further evidence received by me (see Exhibits W16 and W17). From the gross proceeds of sale the sum of $8387 was deducted being an amount that the husband was obliged to pay to the Legal Services Commission for legal costs incurred by him. Clearly the husband has to be solely responsible for this amount, and to achieve that end I have chosen to notionally add that amount back, or put another way I have not in fact deducted it from the gross proceeds of sale for the purposes of applying the percentage division that I fix upon to the property of the parties.
90.3With P business neither party presented a valuation of the business itself or of its individual assets, and in particular its plant and equipment and vehicles. Nor was there any agreement about the value of the same, apart from an agreement that the leased Nissan twin-cab utility had no equity.
In his Financial Statement filed on 4 February 2008 the husband deposed to the value of the business being $35,000. However, as I have referred to already that is just his estimate of the total value of all of the assets of the business less the liabilities. It is not a figure that I should use even on the basis of being an admission against interest, given that as I will elaborate on in a moment the husband proposed to sell most of the significant items of plant and equipment including vehicles. Indeed, both parties have chosen to include specific items of plant and equipment including vehicles in their schedules of the assets to be taken into account, and the argument has been about the value of these individual items. That said, it is also apparent that neither party has sought to include all of the assets and liabilities of the business. According to the last income tax return that was tendered to me (see Exhibit W10) there were other assets such as office equipment that the business had, and there was no request to include such items as the debtors and the creditors.
Turning then to the individual assets about which there was a dispute. They are the twin-cab truck with crane, the wood chipper, the ride-on lawnmower and the single cab utility. In the end result the husband proposed that all but the latter be sold and the proceeds divided between the parties. In view of the lack of valuation evidence or agreement about the same that was a logical option and one that I proposed to make the subject of orders. However, I confirm that now all but the twin cab truck with crane has been sold by the parties, including the single cab utility, and with the truck it is agreed that the husband will retain that at a figure of $15,000.
90.4With the 1991 off-road motor bike the wife initially suggested that that was worth $3000, but to repeat the husband says that it has no value, that it is unregistered and indeed is now used by the children. There is no basis that I can see for the figure propounded by the wife, but in any event in his final address the wife’s counsel submitted that it should be sold and the proceeds divided. I agreed with that course of action, and, of course, that has now happened.
90.5With the household furniture and effects, neither party sought to include what had been purchased since separation. To repeat though, at separation the husband retained all of the household furniture and effects and the wife took very little of her personal effects. There is no valuation of what the husband retained, but in his financial statement he deposed to that being worth $2500. The wife seeks that I use that figure, and I am prepared to do so; it is clearly an admission against interest (Khademollah and Khademollah (2000) FLC 93-050).
To repeat, there is a dispute as to the personal effects that the wife ultimately retained. She says that she has very few, and indeed seeks an order for the delivery up of a number of items by the husband. She also alleges that the husband destroyed most of her possessions in a bonfire after separation. The husband denies this. He claims that he delivered boxes packed with the wife’s possessions to her after separation, but he does agree that he burnt clothing and books that she did not want, that some items had sustained water damage, and that others were eaten by rats. I find that the husband did in fact destroy all of the remaining possessions of the wife in a bonfire after separation, but there is no valuation of the remaining items and thus there is no figure that I can use here. Unfortunately that also disposes of the wife’s application for the delivery up by the husband of various items. However I will still make an order for the husband to deliver up to the wife certain photos and to make available to the wife family photos and videos for her to copy.
90.6As referred to previously the wife claims that the husband has a coin collection and a sporting card collection that would have a value. She also says that the husband failed to disclose these items. The husband says that he has in the past collected sporting cards and coins but he says they are of no real value and he did not even think to include them in his financial statement. The wife did not raise this issue until the hearing. It was not in her affidavit of evidence in chief and she has neither presented any evidence of value nor did she prior to the hearing make an application for example, for the husband to obtain a valuation or to permit the items to be valued by her.
In this instance I accept the husband’s evidence and although I will include the items in the schedule there is no figure that I can use for their value.
90.7With the superannuation of the parties, there is agreement that the same should be included in this asset pool and not in a separate pool. I consider that to be an appropriate course of action given the value of the wife’s entitlement with IOOF and of the husband’s entitlement with ING. The amounts involved are just over the minimum amount that the legislation says can be the subject of a splitting order. The husband’s Westpac entitlement is more substantial but when compared with the non-superannuation assets it is still of no great moment. I note of course that the value of each party’s entitlement was not entirely up to date, but I would not expect those figures to be significantly more than the figures provided.
90.8As referred to previously the wife seeks to, as her counsel describes it, “add-back” one half of certain amounts withdrawn by the husband from the Westpac line of credit.
Firstly there is the sum of $33,007.50 withdrawn by the husband on 20 April 2005 to purchase the twin-cab truck with crane. The wife’s counsel submits that one half of this, namely $16,500 should be “added-back” by the husband physically paying to the wife that amount from his share of the property of the parties. Now, I fail to see the basis for that. I accept that with the wife taking the Pajero motor vehicle the husband needed a larger vehicle for his use and including for the business, and in any event that vehicle is included in the asset pool (as the wife herself proposed, I might add) on the basis that it will be retained by the husband at an agreed figure of $15,000.
Secondly, there is the total sum of $20,000 transferred by the husband from the line of credit to the business account between 2 May 2005 and 5 May 2005, and which was then used by the husband to meet an account of in excess of $28,000 for goods purchased by the business. Again, the wife’s counsel submits that one half of the $20,000 should be “added-back” by the husband paying to the wife $10,000 from his share of the property. The basis of this claim is that these transactions had nothing to do with the wife, and the intention of the husband was to draw on the line of credit for which the wife was responsible jointly with him, to meet ongoing expenses of the business which he has solely had the benefit of. Further, at the time there was money in the business account which should have been used to meet at least part payment of this bill given that it did not need to be paid in full at the time.
To repeat, I accept that the husband did this with a view to ensuring that the wife in effect met one half of the ongoing expenses of the business and this is clear from the circumstance that between October 2004 and March 2005 there were no withdrawals from the line of credit and the business was run out of the business account. However, the question is how should this be accounted for? What the wife’s counsel proposes cannot in fact be described as an add-back approach in the way that that is understood in this Court and as appears from the Full Court decision in Omacini and Omacini (2005) FLC 93-218. What that would entail would be a notional add-back of $20,000 to the net asset pool before determining the entitlements of the parties (Townsend and Townsend (1995) FLC 92-569). Now, in my view that is the approach that should be adopted because that then allows for the ultimate percentage division to be applied to the relevant net asset pool.
Thirdly, there is the further total sum of $15,000 transferred by the husband from the line of credit to the business account between 10 June 2005 and 4 July 2005. There was no specific evidence from the husband to indicate what this money was then used for but it is apparent from the statements for the business account that were produced by the husband during the trial that on 20 June 2005 the sum of $7538.20 was paid off his credit card. At the time there was $21,525.29 in the business account which of course included the money transferred as well as income received by the husband through the business. The husband of course failed to disclose these transactions despite his obligation to do so and despite a specific request by the husband’s solicitors which the husband ignored. It was only at trial that the husband deigned to provide relevant documentation, but unfortunately even then not all of the required documentation.
The wife’s counsel submits that the wife should not have to bear any responsibility for the total amount of $15,000 withdrawn from the line of credit in these circumstances and seeks that the husband pay the wife one half of this amount, namely $7500 from his share of the property of the parties. Now, again this is not the correct approach, and that money withdrawn by the husband and spent by him for his own benefit should be notionally added-back in the way that I have referred to already. However, I note that according to the statements of the business account (see Exhibit W3) $3158 was paid off the wife’s credit card from this account on 6 June 2005. Thus, I would still add-back the $15,000 but in calculating the respective entitlements of the parties I would take account of this payment which the wife has had the benefit of.
Fourthly, there is the further total sum of $20,000 transferred by the husband from the line of credit to the husband’s personal account between 11 July 2005 and 19 July 2005. This was clearly an exercise by the husband to start up his own account with money from the line of credit in the knowledge and expectation that without more the wife would be responsible for at least one half of that amount.
Again there is no specific evidence from the husband as to what he used the $20,000 for, but it seems from the statements of the account produced during the trial (see Exhibit W4) that $7154.95 was paid to the solicitors acting for the husband (and also the wife initially) in relation to the claim against the W Group of Companies and others. I find that the wife should share responsibility for this payment, but that still leaves $12,845 unaccounted for, for which she should bear no responsibility. Again the wife’s counsel’s submission is that one half of this amount should be physically paid by the husband to the wife, but my view continues to be that it is appropriate to notionally add-back the whole amount of $12,845 to the asset pool.
90.9The wife’s counsel concedes that approximately $13,100 of the amount withdrawn from the line of credit after separation went to benefit the wife. There was the credit card payment of $3158 referred to above, but in addition the wife had the use of $10,000 to purchase furniture and effects given that she left with nothing. In these circumstances it seems to me that it is appropriate to notionally add back this amount of $10,000 as well. There was of course the total of $107,000 withdrawn by the husband between September and July 2005, and it may be that the husband has benefited from more of this than has been identified, but the evidence does not allow me to make any finding in relation to that and I do accept that some part of what the husband transferred to the business account was used to meet expenses of the business incurred whilst the wife was a partner.

Contributions

I now turn to the respective contributions of the parties pursuant to s 79(4) of the Family Law Act 1975.

Section 79(4)(a) and (b)

As referred to above, there is no significant initial contribution of either party to be taken into account. They each brought assets into the relationship but there is no detail of that in the evidence save and except in relation to the house property that they purchased jointly at E. They used their savings to pay the deposit and it seems to be accepted that apart from this they only had minimal assets.
Following the commencement of cohabitation the husband made the following contributions:
93.1The husband was in full time employment with B Company until 1991 when the W partnership with his brother was formed. That partnership was subsequently incorporated and the husband continued working full time until he says September 1998, although the wife says 1995, when the partnership business P Business was set up. The husband then worked full time in that business up to separation.
There is no issue that the husband used the income that he received during cohabitation for the benefit of the family unit, and that he should receive credit for this as a financial contribution made by him.
93.2When the husband ceased his employment with B Company he received a payout. He says it was $20,000, the wife says that it was at most $10,000. In this regard I accept the husband’s evidence, but whatever the amount, again there is no issue that this money was used for the benefit of the family unit and the husband should receive credit for this as a financial contribution made by him.
The wife’s contributions under this heading were as follows:
94.1The wife was in full time employment with T Company until 1994. She took maternity leave though when R and M were born during this time. Thereafter her only employment was in the partnership P Business.
There is a dispute as to when that business commenced, 1995 or 1998, but I accept the evidence of the wife that it was in 1995. Initially that business was run from home and the wife attended to the office work. In 2004 a warehouse was leased and the business was operated from there. After taking the children to school/kindergarten the wife would then attend at the warehouse to undertake the office work. She would collect the children after school/kindergarten, take them to their various activities and then return with them to the warehouse until 5:00pm when she would then return home to prepare the evening meal and get the children ready for bed.
As with the husband there is no issue that the income of the wife was used for the benefit of the family unit, and thus she should receive credit for this as a financial contribution made by her.
94.2When the wife left T Company she received a redundancy payment of $18,500 and a payout of her superannuation entitlements of approximately $36,900. This money was used for the benefit of the family unit; it went to pay off part of the mortgage secured over the title to the K property, and the wife should receive credit for this as a financial contribution made by her.
94.3The wife’s case is that she cashed in a life insurance policy to help fund the start up costs of the partnership. The husband does not deal with this in his evidence but in any event I am prepared to accept what the wife says. The amount involved was not specified but this is still another financial contribution made by her for which she has to receive credit.
On the basis of the foregoing, I find that the husband’s contributions pursuant to s 79(4)(a) and (b) of the Act far outweigh the wife’s contributions. His income was substantially more than the wife’s and he did more work in the partnership business than she did.

Section 79(4)(c)

I have no difficulty in finding that during cohabitation the wife was the primary caregiver to the children and that she attended to the majority of the domestic tasks in and around the home.
The wife continued to work after the parties’ first child R was born in 1989, but after their second child M was born in 1993 the wife cared for the children full time until the parties commenced P Business in 1995. Between 1995 and 2004 the business was operated from home and thus the wife was able to continue to care for the children and attend to their needs whilst undertaking the office work for the business and looking after the home.
In 2004 a warehouse was leased by the business, but as I have referred to above, the wife was able to continue working whilst attending to the needs of the children and looking after the home.
The husband’s evidence is that he worked long hours in the business and sometimes seven days each week. Thus, although he claimed that he took the children with him to work on occasions, that did not detract from the primary responsibility for their care falling on the wife. I do accept though that when he was able to the husband assisted the wife in caring for the children and he also assisted her in attending to the household tasks in and around the home.
In relation to the children’s sporting and extra curricular activities I find that the parties shared getting the children to and from their activities although the wife still undertook the majority of this travelling. She was also the one to usually take the children to any medical appointments.
It is also significant that after selling the K home the parties and the children lived on the property at D. They occupied a caravan and two sheds, and the conditions were quite primitive. That made the wife’s tasks in caring for the children that much more difficult. For example, there was no running water and to wash they had to use a bucket of hot water and soap. Eventually though the wife would take the children to her parents’ home to have showers.
On the basis of these findings there is no doubt that the wife’s contributions under this heading far outweigh the husband’s.

Post-separation contributions

The children remained living with the husband following separation. The wife alleges though that the husband initially prevented the children from staying with her and that subsequently he made it difficult for them to spend regular and frequent time with her. The husband denies this and says that initially at least the wife expressed the view that the children were better off living with him. However, because the parenting issue resolved during the course of the trial these claims were not fully explored either in evidence or in submissions, and it is impossible for me to make any findings about them. Thus I can only proceed on the basis of what in fact happened. In that regard there is no doubt that overall the husband has had the primary responsibility for caring for the children since separation. R did move to live with the wife in October 2005, and on 14 February 2006 an order was made to confirm that position. M stayed with the wife full time from January 2006, and on 22 February 2006 an order was made for M to live with the wife. That remained the position until M returned to live with the husband in April 2007. With R, she moved out of the wife’s home to live with her boyfriend on 1 June 2006, she returned to live with the husband on 24 February 2007, and then returned to live with the wife in October 2007. R of course turned 18 years of age at this time.
The husband unilaterally enrolled H and S in private schools and he has met their school fees.
The husband continued to operate P Business and receive all of the income. In January 2006 he unilaterally dissolved the partnership and continued as a sole trader.
The husband has maintained the property at D since separation and for a period of time he met the mortgage repayments and all other outgoings.
The wife has paid child support to the husband since the separation. At the time of the trial she was paying $77.58 per month.
On the evidence it is apparent that the husband’s post-separation contributions have been greater than the wife’s.

Conclusion on contributions

The wife’s counsel submitted that the contributions should be assessed as being equal. The husband submitted that they should be assessed at 80%/20% in his favour.
Unfortunately, despite my attempts to explain the position it was apparent that the husband did not appreciate how this issue should be determined, and as a result his claim in this regard was excessive. Indeed, not only did he seek that he “have 80%” of the net assets but he also sought that the wife reimburse him 20% of the payments that he has made since separation by way of mortgage repayments, rates, taxes, insurances, repairs and maintenance, school fees and criminal court costs.
The summary of my findings is that the initial contributions were inconsequential, the husband made the greater contributions during cohabitation pursuant to s 79(4)(a) and (b), the wife’s contributions during cohabitation pursuant to s 79(4)(c) were greater than the husband’s, and the husband made greater post-separation contributions than the wife.
In weighing up all of the contributions of the parties I consider that they should be assessed at 52.5%/47.5% in favour of the husband. Although the wife has made significant and substantial contributions, the financial contributions of the husband and his greater post-separation contributions require a weighting in his favour. However, it is a nonsense to suggest that that weighting should be as large as the husband suggests. As I have said before on a number of occasions there is a danger in comparing contributions that can be quantified in money terms such as the husband’s with contributions which cannot such as the wife’s. There can be a tendency to discount the latter contributions by highlighting the former simply because they cannot be quantified. This has been recognised in leading case such as Mallet v Mallet (1984) FLC 91-507 and Ferraro and Ferraro (1993) FLC 92-335, and the message is that even though they cannot be quantified in money terms great weight should still be accorded to contributions such as those as parent and homemaker.

Section 75(2) of the Family Law Act

I now turn as s 79(4)(e) of the Act dictates to the individual matters to be taken into account pursuant to s 75(2). Although the wife says that there are no relevant matters requiring an adjustment the husband says otherwise, and thus it is necessary to consider this sub-section. The sub-paragraphs that the husband says are relevant are relatively few, and they are (c) and (m).

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

The current order provides for the three children under 18 years of age to live with the husband and spend time with the wife, but in the case of M that is subject to her wishes. Thus, the husband has the primary responsibility for the care and support of the children. This is a significant responsibility and it goes beyond the husband attending to the children’s physical and financial needs. There are also the social and moral implications of having to care for and raise children (Collins and Collins (1990) FLC 92-149, at p.78,043-78,048; Waters and Jurek (1995) FLC 92-635, at p.82,376-82,378).
M is now 16 years of age, but H is only 14 years of age and S is only 7 years of age. Thus there are many years of dependency and guidance still to come. This is a significant responsibility for the husband, despite the parties sharing equal parental responsibility, and it needs to be properly recognised.

(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

The wife is cohabiting with Mr X, and the husband’s case is that he is not contributing as much as he should to the expenses of the wife’s household.
Mr X was working as a senior technician with Y Company and earning approximately $48,000 per annum, but he lost this employment in about April 2006 and he was unemployed for 12 months until he started his own business. At the date of the trial he was not yet paying himself a wage but was drawing money from the business to contribute $300 per week to rent and food.
On the evidence there is no basis for finding that Mr X is not contributing sufficiently to the household expenses.

Conclusion on section 75(2) factors

The husband submitted that there should be a 1% adjustment in his favour as a result of a consideration of sub-paragraphs (c) and (m) of s 75(2). To repeat, the wife’s case is that there is no factor that requires an adjustment either way.
I consider that there should be an adjustment in the husband’s favour because of his greater responsibility for the care and support of the children than the wife. There is no basis though for an adjustment arising from sub-paragraph (m) of s 75(2).
The adjustment should be 5% rather than the 1% sought by the husband. The primary care and support of the children is a significant burden on the husband.

Section 79(4)(d), (f) and (g)

Next, I am obliged to consider the effect of my proposed orders upon the earning capacity of either party (s 79(4)(d)); any other order made under the Act effecting a party to the marriage or a child of the marriage (s 79(4)(f)); and any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage is to provide or has provided for a child of the marriage (s 79(4)(g)).
In relation to the first matter, the evidence does not indicate that the earning capacity of either party will be affected by the proposed orders.
In relation to the second matter, I have already taken into account the parenting orders made during the course of the trial.
In relation to the third matter, to repeat, at the date of the trial the wife was paying the sum of $77.58 per month by way of child support, and it is apparent that that will continue to be the case into the future. I can say that I have taken that into account and it provides no basis for altering the orders that I propose to make.

Conclusion

The net assets of the parties should be divided 57.5%/42.5% in the husband’s favour.

The Telstra account

Before turning to consider s 79(2) of the Act I need to deal with who is to be responsible for the outstanding Telstra account for P business.
It is common ground that the relevant contract with Telstra was in the wife’s sole name, but that the account was in the name of the business.
Following separation the husband retained the business including the landline number and the two 1300 numbers. The wife only continued working in the business for a matter of days after separation, and she had no involvement in it thereafter, and certainly she did not use the telephone numbers. Despite this, in February 2006 the wife received an account from Telstra, part of which was for the business. The wife contacted Telstra and explained that she was not responsible for that part of the account. She was sent some forms which she returned and she assumed the matter would then be resolved. Indeed, she heard nothing for some time until in February 2008 her solicitor received a note from the husband forwarding an account from Telstra for the business in the sum of $421.99 (see Exhibit H5). The note suggested that the husband had been unable to cancel the phone numbers and he was wanting the wife to attend to that.
Through her solicitor the wife responded by letter of 12 March 2008 (see Exhibit W15) indicating that she would arrange to disconnect the phone numbers on the basis that the husband would be solely responsible for the accounts and requesting to be advised of the numbers to disconnect. The husband did not reply but the wife went ahead and cancelled all of the numbers. She then received an account for $695.25 in September 2008, and it is this account which is the subject of the dispute.
The husband has failed to pay this account saying that because the wife did not disconnect the phone numbers immediately interest and penalties have been added and the wife should be responsible for the entire account.
In my view this is an account that the husband has to pay. The wife’s actions have been reasonable in the circumstances and she should not have to bear any responsibility for this account.

Just and equitable

Pursuant to s 79(2) of the Act the Court cannot make an order unless the Court is satisfied that in all the circumstances it is “just and equitable” to make the order. To assess that I need to stand back and consider the practical affect of my proposed orders (Phillips and Phillips (2002) FLC 93-104).
Leaving aside the asset still to be sold, the net asset pool comprises a monetary equivalent of $537,205.45. Thus, the effect of my decision is that the husband is entitled to net assets of $308,893.13, and the wife is entitled to net assets to the value of $228,312.32.
Leaving aside the net proceeds of sale of the property at D, the husband has had and currently has the benefit of net assets totalling $113,796.63 calculated as follows:
The sale proceeds of the caravan  $2,800.00
The sale proceeds of the cows  $9,874.00
The sale proceeds of the single cab utility, the wood chipper,
the ride on lawn mower, and the motor bike  $2,300.00
The twin-cab truck with crane  $15,000.00
The husband’s furniture and household effects  $2,500.00
Sporting cards  N/K
Coins  N/K
The husband’s superannuation entitlements:
- ING  $5,726.57
- Westpac  $22,522.06
Money withdrawn from Westpac line of credit for the
husband’s benefit  $44,687.00
Money paid to the Legal Services Commission on the
husband’s behalf    $8,387.00
TOTAL  $113,796.63
On the same basis the wife has had and currently has the benefit of net assets totalling $30,481 calculated as follows:
The sale proceeds of the Pajero motor vehicle  $10,990.00
Furniture and household effects  N/K
IOOF superannuation entitlements  $6,333.79
Money withdrawn from Westpac line of credit for the
wife’s benefit  $13,158.00
TOTAL  $30,481.79
Thus, from the net proceeds of the sale of the property at D of $392,927.03 the husband should receive $195,096.50 and the wife $197,830.53.
On this basis the husband will have his business, P Business, albeit with very few of the items of plant and equipment and vehicles, his household furniture and effects, his superannuation entitlements and a substantial amount of cash. Of course, it must not be forgotten that he has also had the benefit of substantial amounts of money withdrawn from the line of credit subsequent to separation.
With the wife, she has her household furniture and effects, her superannuation entitlements and also a substantial amount of cash.
This result provides each of the parties with a moderate asset base on which to move forward, and for the husband’s part he will be able to continue to operate his business.
On this assessment I am satisfied that in all the circumstances it is just and equitable to make the orders that I propose.

I certify that the preceding 141 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 28 October 2009.

Associate

[2009] FamCA 1025

28 October 2009

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