RENDLE and RENDLE

[2013] FCWA 48

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RENDLE and RENDLE [2013] FCWA 48

CORAM: CRISFORD J

HEARD: 29, 30, 31 JANUARY 2013 & 2, 3 APRIL 2013

DELIVERED : 16 MAY 2013

FILE NO/S: PTW 3198 of 2010

BETWEEN: ALLISON RENDLE

Applicant

AND

ADAM RENDLE
Respondent

AND

MATTHEW RENDLE & RONALD RENDLE

Interveners

Catchwords:

Property settlement - Pool of Assets - Ownership of farming property - Presumption of advancement - Whether rebutted - Short relationship - Overwhelming initial contribution

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr D Smith

Respondent: Mr M Berry

Interveners : Mr M Rynne

Solicitors:

Applicant: O'Sullivan Davies

Respondent: Carr & Co

Interveners : Watts McCray

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

Calverley v Green (1984) 155 CLR 242

Cummins v Cummins (2006) 227 CLR 278

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

1[Allison Rendle] (“the wife”), originally from the United States of America, came to Australia to live with [Adam Rendle] (“the husband”) in mid-2003. In doing so she left behind high paying employment in Hong Kong as the senior director of finance [Company A] . She planned to work with the husband on a farm (“[Redland]”) near [Country Town A] , which had been in the [Rendle] family for over 100 years.

2The parties were married [in] 2004. At that time the husband was aged 45 years and the wife 41 years. The wife moved from Redland in September 2009 and the parties separated on a final basis in December of that year. Proceedings were commenced in the Family Court of Western Australia on 10 June 2010. There are no children of the union. The wife has remarried and lives in America. The husband continues to farm Redland.

3On 7 June 2012 orders were made by consent allowing the husband's brothers, Matthew and Ronald, to intervene in the proceedings. Each brother claims a beneficial entitlement to one third of the value of Redland, which is the major asset in this dispute.

Pool of assets

4The first step in the property exercise is to identify the parties’ legal and equitable interests in their property.

5The main issue is the nature of the husband and his brothers’ interest in Redland. If the husband only owns a one third interest in Redland the asset pool is considerably reduced.

Assets

•Redland Farms

History

6The farm land comprising Redland was initially acquired by the husband's grandfather in about 1908. Over time it has grown in size to approximately 4,750 acres by virtue of the acquisition of surrounding land. After the death of the husband’s grandfather his father [Laurence], now deceased, and his mother, [Leanore] operated the holding in partnership.

7In 1979 the husband started to work on Redland with his father full-time. He had been enrolled at the University of Western Australia studying for a Bachelor of Science (Agriculture) Degree. Due to a long drought and a downturn in the economy, he was required to give up his studies to return home and assist his father. His two brothers continued with their tertiary education, save in 1982 Matthew worked on Redland full-time.

8In 1991 three additional parcels of farming land were acquired by Laurence, Leanore and the husband. On 30 May 1991, each became a registered proprietor as a joint tenant. These parcels of land together were referred to as “the Laughton block”.

9In about 1996 Laurence suffered an [poor health] and was unable to continue to run Redland as he once had. It became apparent that some form of succession plan had to be implemented. At the time Matthew, the youngest brother, lived in Sydney and the eldest brother, Ronald lived in Perth.

10On or about 27 July 1997, Matthew compiled a document styled “Farm Transfer Planning”. He deposes it was created to assist in facilitating discussions with the family about the future of Redland. Ostensibly it sets out the attitude of each family member to the future of the farming operation.

11According to the document, relevantly here, Laurence, as the donor, accepted he needed to pass ownership of Redland over to a son or sons to be eligible for a Veteran’s pension. However, he was reluctant to pass ownership of Redland to the husband in case he sold the property.

12Leanore had few reservations about Redland being sold. The husband wanted full ownership as he had worked on Redland for many years earning low wages. He felt he deserved some part of Redland as an inheritance.

13Ronald had few reservations about Redland being sold. Matthew did not want the husband to have the financial burden of purchasing his or Ronald’s share. Laurence had previously had to buy out the shares his own siblings had in Redland. This was a financial drain on him and took many years. Despite this, Matthew wanted some restriction on the husband being able to sell Redland.

14The proposed “answer” set out in the planning document was for Laurence to pass ownership to the husband with the brothers to receive no financial benefit from the transfer. However, it identified that a legal document was required to prevent the husband selling Redland in his brothers’ lifetime without one third ownership reverting to each of them. It was identified that they should take immediate action to contact their solicitor and accountant.

15On 14 August 1997, [Mr G], the solicitor retained by the farming partnership, wrote to Ronald generally discussing the future of Redland. Ronald had written to him on 25 July 1995. Mr G raised the issue of the need to formalise, with care, any agreement relating to restrictions on the husband selling Redland if it was transferred to him. He identified a trust as an appropriate instrument to distribute income and capital to family members and gave a quote for the legal costs involved in preparing one.

16On 28 October 1997, Mr H, the accountant for the farming partnership, sent a facsimile to [Rendle & Co] enclosing draft instructions to be approved for sending to Mr G for the preparation of documents to transfer Redland to the husband. At that time Laurence and Leanore operated Redland in partnership as Rendle & Co. The draft instructions included the transfer of all the farm land to the husband and that the husband be prohibited from selling the farm land without first obtaining his brothers’ consent. It also provided for Laurence and Leanore to receive some payment for the transfer to the husband.

17No formal agreement to this effect, or any effect, was ever prepared or entered into by the family (or any of them) during this period. The payments to the parents set out in the document were never paid.

18In February 1998 the husband and his father signed transfers of land relating to all the farm real estate holdings including pastoral leases. All of the land was transferred from Laurence to the husband absolutely. A clearance to transfer the pastoral leases had to be obtained from the minister. On 28 May 1999 and then on 27 June 2002 the balance of the farm real estate holdings were transferred into the husband's sole name, including the Laughton block.

19The husband took over the business Rendle and Co in 1999 and the farming enterprise was then operated by him solely.

20In 2001 Laurence passed away. The husband and wife met in March 2002.

21On 28 August 2003 Matthew signed a will which purported to transfer any interest in Redland to which he may become entitled to his brothers. The will specifies that his ownership of a share of Redland would come into effect upon a sale of the farming property or if the husband is not survived by children.

22On 18 February 2004 in contemplation of the husband’s marriage to the wife, Matthew prepared a document entitled “Farm Transfer Agreement”. This was done after discussion with his two brothers and was based on the earlier 1997 document. On 19 February 2004, after some minor amendments, a final farm transfer agreement was prepared by Matthew.

23On or about 27 February 2004, when all together, the brothers say each signed the document in Matthew’s study. The document had been photocopied. The husband signed his name on the original and left the study. The other two brothers signed the document. The original was left for the husband to collect upon return from his honeymoon.

24The Court was not provided with a signed copy.

25The parties were married on the following day and the document, or documents, were duly collected by the husband on his return from the honeymoon. His evidence is that he picked up the agreements which were folded up. He assumed he had collected the signed agreement.

26The husband says that in about 2005/2006 when the wife was going through some of his paperwork she found the signed agreement. She queried what the document was and expressed her dislike of its contents. The wife accepts she found the agreement, but denied it was signed.

27She said when she confronted her husband about the content he said the agreement was a complete nonsense and that was why he did not sign the document. She said that Matthew’s wife, [Alice] , had approached her and suggested that she get the husband to sign the document. Alice denied having any such conversation or, indeed, any interest in Redland.

28The wife said that the husband had consistently contended that Redland was his and the document was a piece of rubbish. The husband denied that he had ever said the agreement was rubbish. He says he never denied there was an agreement between himself and his brothers. He denied any animosity between himself and the brothers over the agreement.

29The wife said she based her understanding of the situation on what the husband had said to her, namely, that the farm transfer agreement was nonsense, it was not valid and he had refused to sign it. She said the husband made a point about being the sole proprietor. She said that this position was supported by the land holding documents she saw at the homestead and the manner in which the husband operated Redland.

30The wife recalled being in the same room as the husband when Matthew was on the telephone. She said that the husband had refused to sign the agreement and she was concerned that he was being put in a position, not only against his interest, but one in which he did not want to be.

31It is difficult to make an assessment of the credibility of the two opposing sides. All of the witnesses gave evidence in a credible fashion. However, I was simply not able to assess the reliability of the evidence without reference to contemporaneous documents. Each party had considerable investment in the Court accepting their version of events.

32In late July 2010 the husband used a portion of Redland to secure borrowed funds from [Bank A]. At the time he made representations to the bank that he was the sole registered proprietor of Redland. This was after separation and after the wife had commenced proceedings in this Court. As a result, the husband was extended an overdraft facility with a $300,000 limit. At trial this was about $250,000 overdrawn.

33The husband accepted that initially in the relationship he did not tell the wife about the brothers’ interest in Redland and he acted as if he was the sole owner. It only became an issue when the wife found the farm transfer agreement the husband’s brothers created in 2005/2006.

34The husband accepted that he stated he solely owned Redland when he filed a Defence to a District Court claim the wife commenced against him for personal injuries. The Defence was filed on 15 November 2010. The husband said that was still his view that he owned all the property, although he said that if something happened to him, his brothers would get a third share each.

35The husband said he told his brothers about the pending Family Court action on or about 10 June 2010 when the wife advised him that she was seeking a court settlement and commenced proceedings.

36The brothers filed an application to intervene in the proceedings about two years later on 9 May 2012. They were granted leave to intervene on 7 June 2012.

Who owns the farm? – objective evidence of ownership

37The wife relies upon the fact that all the titles to Redland’s land are registered in the husband's name. They were transferred to him by his father. She says this is consistent with, and supported by, the presumption of advancement.

38It is generally agreed between the parties that in situations where a parent or parents transfer a property, or part of a property, to their child, it is presumed to be by way of advancement (Calverley v Green (1984) 155 CLR 242) with the equitable or beneficial interest in the property aligning with the legal title (Cummins v Cummins (2006) 227 CLR 278). In such a case where a person seeks to rebut or qualify the presumption, it is to be done, on the balance of probabilities, on the basis that the parent or parents did not have that intention. Here the husband and his brothers seek to rebut the presumption of advancement. This being the case, the onus is on them to prove the presumption has no application here.

39The High Court held in Calverley (supra) that the correct time to determine beneficial interests in a property is at the time of acquisition. This is to be ascertained by drawing upon evidence of the acts and declarations before and at the time of purchase or so immediately after it as to constitute a part of the transaction. Subsequent declarations could be received in evidence only if against interest.

40The matter is complicated here because the presumption of advancement relied upon by the wife seeks to exclude the husband's brothers in the context of a farming property which, historically, has been “kept in the family” and “owned” by all siblings.

41Firstly, there are the three parcels of land which constitute the Laughton block. These were purchased by the husband and his parents from Laurence’s brother as joint tenants in 1991. This was at a time when the husband had been working full-time on Redland for modest wages for about 12 years whilst his brothers pursued other careers.

42There is a paucity of evidence about the circumstances of the acquisition of this block.

43There is no evidence of any discussions at or about the time the Laughton block was acquired by the parents and the husband as joint tenants. The husband's father Laurence is deceased. There was no attempt to have Leanore provide any evidence, even without a court attendance. After the hearing resumed the interveners relied upon an affidavit of her treating general medical practitioner who said she suffered from diabetes. The practitioner also said that “even though Diabetes per se currently does not impact her capacity; I am of the opinion that in view of her old age and her past history of Stress & Depression, attending court could impact her conditions. [sic]”

44The Laughton acquisition took place some five years before Laurence fell ill. There is no suggestion that Ronald and Matthew were involved in any decisions or discussions about succession at that time. The interests in the Laughton block were held as joint tenants, and not tenants in common.

45I am satisfied the evidence is consistent with the husband initially holding both the legal and beneficial title to a one third interest in the Laughton block. I do not accept there is evidence to rebut the presumption his parents wanted him to retain that block for himself, likely by survivorship, given his work on Redland during those early years.

46The balance of the Redland land was transferred to the husband between February 1998 and June 2002. Although the husband signed transfers of land on the earlier date, delays in registration were caused by the need of the minister to approve the transfer of the pastoral leases.

47The husband and his brothers say they have provided evidence to show there was a contrary intention to the husband solely owning Redland. This contrary intention has its genesis in the 1997 farm transfer planning document. The brothers seek a declaration that the husband holds their interest on trust for them, albeit he has a life interest in the property.

48In this regard, the brothers point to the farm transfer planning document as being contemporaneous with the transfer of the farming land. They say the document shows that the husband owns only one third of the land.

49The farm transfer planning document of 1997 was not signed. As set out by Counsel for the interveners, in his Papers for the Judge, the farm transfer planning document was effectively an “agenda” or “discussion paper”. By the time of trial the main donor, Laurence, had passed away. Leanore, who was involved in the Laughton block and was Laurence’s wife, was still alive at the time of the trial, but she gave no evidence. She did not file an affidavit.

50In summary, the planning document reveals:

•It was a position or discussion document prepared by one brother, Matthew.

•It apparently reflects Laurence’s intention of appreciating a need to pass ownership of Redland to a son, or sons, if he was to be eligible for a Veteran’s pension. It appears he was reluctant to pass ownership of Redland to the husband on the basis that the husband may sell it. This assumes, and is likely to be correct in my view, a desire of Laurence to keep Redland in the family.

•There was an awareness of the need to obtain and then to follow legal and accounting advice. Such advice was taken although never followed despite ample opportunity given the length of time between the completion of the farm transfer planning document and the actual transfer of the land holdings.

•An informal understanding of a need for consultation if there was any suggestion Redland would be sold.

51The husband said that when he farmed the property he owned 100 per cent of it, but if something happened to him, his brothers would get a third each. This, in itself, is not entirely consistent with the planning document, but appreciates the need to keep Redland in the family.

52Both before and after this document was prepared, it was the husband who ran Redland, planned Redland and spent his money on Redland without any meaningful assistance or contribution from his brothers.

53The husband concedes, and it is the wife’s position, that he held himself out as being the sole owner of Redland. This holding out included to a financial institution, the District Court and the wife.

54The limit of the overdraft with Bank A is almost the same as the value of the interest the husband and his brothers maintain he has in Redland. There is no evidence this was raised with the bank or the brothers.

55I am not satisfied on the basis of the farm transfer planning document that a trust was ever formally or, indeed, informally, created. Although there was a desire to keep Redland in the family and for the brothers to be involved if it was to be sold, at the end of the day the legal title to the property was reposed in the husband without anything more. There was the opportunity and knowledge to do more. No further steps were taken. The transfers from Laurence to the husband were finalised. The only intention I infer on Laurence’s part is represented by the legal title and a hope the brothers would work together to ensure the family farm was not prematurely disposed of.

•Subsequent Events

56The interveners and the husband also rely on events that took place in 2004 to rebut the presumption the husband had sole legal and beneficial ownership of the farm lands. The original planning document was prepared in 1997. No action was taken on the basis of this document. It became an issue over six and a half years later, on the eve of the husband’s marriage to the wife.

57The husband deposes:

26.It was the first marriage for me and the third marriage for [Allison] [Allison] had also lived in two de facto relationships before me.

58The wife has subsequently remarried. In evidence Matthew said he thought it prudent to tidy matters up before the husband’s marriage.

59The brothers and the husband then seek to rely on a document entitled “Farm Transfer Agreement”, which was prepared by Matthew just prior to the husband and the wife’s wedding. It reflects the earlier farm transfer planning document. Again, no signed copy of this agreement was ever provided.

60The simple redoing of the original document does not create certainty of the donor’s intention where uncertainty clearly existed at the time of the preparation of the original document. I also take into account the context and timing of the later document.

61In any event, I am not satisfied that this agreement was “so immediately after” the original planning document as to constitute relevant evidence or evidence of any weight.

Conclusion

62The interveners have set out various legal constructs in their Papers for the Judge in an attempt to persuade the Court that they are the beneficial owners of one third each of the property. The only matter really pressed by Mr Rynne in his oral submissions was that of a constructive trust as the means of overcoming the presumption of advancement.

63The facts of this case are such that I am not satisfied Laurence ever intended for Redland to be owned by anyone other than the husband. I am not satisfied that the onus cast upon the husband and his brothers has been discharged.

64It appeared to be a common position that I may not have to decide the issue of ownership of Redland, depending on any outcome on an assessment of the husband and wife’s respective contributions. Whilst this approach has attraction, it is an approach I have considered and rejected. Without determining the asset pool prior to assessing contributions, there is an artificiality about the exercise. I have concluded that the husband, at the time of trial, owns Redland solely.

Addbacks

•Legal fees

65The common schedule of assets provided by the parties to the Court during the trial included money each had paid for legal fees. After hearing the evidence and taking into account the source from which some of these legal fees were paid, it is appropriate to remove them from the pool of assets.

66The husband currently has $30,000 in his solicitor’s trust account. That $30,000 was advanced to him by his brother, Matthew. The husband has also sought to include that in the schedule as a corresponding liability. When Matthew was questioned about the advance, he said that the question of repayment had not been discussed between the brothers.

67I do not intend to include that amount as a notional addback against the husband or as a liability he has to repay his brother.

68I accept the submissions of Mr Berry, counsel for the husband that the source of the funds is completely independent of the parties and although repayment has not been discussed, the husband considers he is under an obligation to repay the advance. It is appropriate to exclude each amount from the asset pool.

69Likewise, the wife has paid $71,287 in legal fees and additionally, there is $2,064 in her solicitor’s trust account. I accept her evidence that these funds have been paid utilising her credit cards. I will remove the items from the asset pool and reduce her credit card liabilities in a corresponding amount.

•Personal injury payment

70In the same vein as the legal fees, the husband has included in his liabilities a Bank A account which relates to a mortgage registered over a part of Redland. An amount of $30,000 of that account relates to a payment he made to the wife after she instituted legal proceedings in the District Court on 20 August 2010 for personal injuries she sustained whilst working on the farm. The claim was resolved in October 2011 when the husband agreed to make this payment. I intend to reduce his mortgage liability by that amount and, correspondingly, I do not intend to increase the wife’s assets by that amount.

71I consider this action to be separate from the parties’ matrimonial issues. The husband has a legal obligation to pay the personal injuries claim, the wife was entitled to it in law. I am not satisfied that given the circumstances of the claim it should be added into the matrimonial pool.

Post separation debts

72In around April 2010 the wife sought to borrow US$40,000 from a friend, Ms S. Ms S says that the money was advanced on 1 June 2010. The unchallenged evidence is that the loan is for a period of no more than five years and there is a 10 per cent interest component. The wife has made repayments on a regular basis and the amount outstanding at trial was AUD$28,277.

73The reason the wife puts forward for needing the money is she was struggling financially at a time when she was not employed in America. As will be canvassed later in the judgment for the year ending 30 June 2010 the wife earned around $82,557 and for the year ending 30 June 2011 she earned around $72,749. She relocated to America in December 2010. Prior to relocating she travelled there on several occasions in 2010.

74One of the debts the wife has sought to include is an USAA truck loan which arose when she refinanced a loan in her present husband’s name.

75The wife also seeks that a number of credit cards be included in the schedule of assets and liabilities. These are:

Description	Amount
Commonwealth Visa	18,633
Target	380
AT & T Universal Master Card	19,164
USAA Master Card	7
Chase United Mileage Plus Visa	12,002
Wells Fargo Personal Loan	27,946
Wells Fargo Visa	33
Best Buy XX-9674	-
Cili a/c	6,662
Cili a/c	23,373
American Express	9
American Express Gold Card	Nil
Bank of America Visa Signature	20,217
GE Capital Care Credit	4,227
Ms S – Personal Loan	28,277
Total	$160,930

76As dealt with earlier these will be reduced by the payment for legal fees ($71,287 and $2,064) totalling $73,351. The wife’s post-separation debts will be reduced by that amount.

77The amounts of the wife’s post-separation liabilities are agreed, but the husband disputes their treatment as a liability to be taken into account given he says they were acquired post-separation. I will consider this in contributions made by the parties post-separation.

Assets - description	Ownership	Value
Redland (Farm)	Husband	1,020,000
Machinery, plant and equipment (Farm)	Husband	159,800
Produce (Farm)	Husband	10,400
Livestock (Farm)	Husband	45,600
Grain Corp shares	Husband	3,997
GST refundable	Husband	3,056
Legal fees paid	Husband	52,795
Sub total assets	Husband	$1,295,648
Liabilities
[Bank A]	Husband	223,619
ATO debt	Husband	11,603
Outstanding PAYG	Husband	980
CBH Freight and handling charges	Husband	10,100
Sub total liabilities	Husband	$246,302
Net assets (in husband’s possession)	Husband	$1,049,346
[US property]	Wife	67,902
Volkswagen	Wife	31,970
Nissan	Wife	10,011
CBA Cash Management Call Account	Wife	6,308
USAA Cheque Account	Wife	5,214
Wells Fargo Cheque Account	Wife	1,197
Sail Boat	Wife	1,045
Sub total assets	Wife	$123,647
Liabilities
Wells Fargo home loan mortgage	Wife	83,560
VW Credit Account	Wife	28,961
USAA Insurance	Wife	1,718
USAA truck loan	Wife	6,165
Credit cards post-separation	Wife	87,579
Sub total liabilities	Wife	$207,983
Net assets (in wife’s possession)	Wife	- $84,336
Superannuation assets
Australian Super Plan	Wife	15,748
Australian Super Personal Plan	Wife	25,429
Individual Retirement Account	Wife	7,562
Total superannuation	Wife	$48,739
Sub total assets, including superannuation	Wife	- $35,597
Total net assets, including superannuation	Joint	$1,013,749

78I consider it appropriate to make orders in relation to the parties’ property. The items of real estate will remain in the sole name of the party who is to retain the asset. It will be necessary to transfer the registered ownership of a number of motor vehicles. To that extent, it is appropriate for the Court to make orders for the settlement of the property of these parties.

Contributions

•Initial

79At the time the parties commenced cohabitation, in mid-2003, the wife had the following assets:

•An amount of $116,317 held in a [Bank B] account.

•Furniture and effects.

•Superannuation of $82,944 held in a Smith Barney Superannuation account.

80The evidence supports an amount of $35,000 in the Bank B account was used to purchase a Holden motor vehicle in 2003. That vehicle was subsequently written off in an accident in 2007. The insurance payout was used to purchase a 2005 Ford vehicle which the husband retains. The wife, in 2007, used a further $10,000 of her savings to purchase a 2006 Mitsubishi motor vehicle.

81She also deposes to using, early in the relationship, $14,532 from her savings to purchase new furniture and household contents for the farm. She took most of those items with her on separation. She also deposes to spending approximately $20,000 on the wedding. However, in her cross-examination I was not satisfied that she had expended all this amount for this purpose. The wife also said that she paid her costs of relocating to the farm at the commencement of their relationship and from the farm on separation. This latter cost was approximately $24,219.

82There is little evidence as to how any balance remaining was utilised.

83In relation to the [Bank C] account the wife says that $35,000 was used to purchase a unit in, [the] USA in March 2009. The unit cost $US135,000 and is registered in her sole name. She borrowed $100,000 from Wells Fargo to complete the purchase. In February 2009 she used $30,000 to purchase a Nissan motor vehicle, which was stored at the [USA] unit. The wife’s evidence is that there were no funds remaining in the Bank C account as at February 2009.

84At the date of the marriage the husband's assets included:

•The business trading as Rendle & Co (which included farm machinery, farm vehicles, crops and livestock).

•The unencumbered farming land of approximately 4,750 acres.

•A house on the farm, which was fully furnished.

•Farm buildings.

•Some cash at bank and various shares of which he deposes that his AWB shares were worth $21,816.

85The value of the farming land as at 30 June 2003 was agreed to be $1,100,000.

86It is common ground that the husband made the greater initial contribution.

•During the marriage

87The husband deposes that at the time of the marriage he was a farmer and throughout the marriage he worked on a full-time basis of six days a week. He earned an income, on average, of $50,000 per annum. In 2004 he received an inheritance of $59,921 which he injected into Redland during drought years. The wife says she worked full-time on Redland with the husband from mid-2003 until about November 2005. The husband accepted this to be the case and that the wife was of assistance to him. She did physical work, saving him from hiring seasonal labour. She also did the bookkeeping.

88The wife suffered physical setbacks whilst working on Redland. In about November 2005 she sustained an injury to her back when assisting the husband to lift farm equipment. She had spinal surgery in February 2006. Unfortunately, a year later in February 2007 she sustained another injury which required further spinal surgery in May 2007. After separation she took a personal injuries action against the husband and received $20,000 after negotiations succeeded in settling the claim. A further $10,000 was paid towards her legal fees. The husband was not insured and he paid the amount from borrowings.

89The wife deposes that the pain suffered by her as a result of her injuries made chores and simple tasks very difficult.

90Despite this, she said that by mid-2008 she was working in paid employment in Perth and various other locations throughout the State for 50 hours each week. She also continued to do 35 hours work on the farm each week.

91Although I am prepared to accept that especially between 2003 and 2005 the wife worked successfully alongside the husband undertaking physical farming duties, I am not so satisfied that her contribution after her injuries and her obtaining other employment was as great as she maintains. She had two lots of surgery and had accommodation off the farm commencing in 2007.

92The wife was a partner in the farming operation from 1 July 2005 until 30 June 2006. During that period her position as a partner provided tax benefits for the parties. Thereafter she was earning considerable income herself and I accept the tax benefits were reduced.

93The wife earned the following income from other sources:

Year Ending	Employer	Amount Earned
30 June 2005	[Employer 1]	NK
30 June 2006	[Employer 2]	$10,384
30 June 2007	[Employer 3] Employer 4	45,000 15,064 Total $60,064
30 June 2008	[Employer 3] [Employer 4] [Employer 5]	45,000 24,059 NK Total $69,059
30 June 2009	[Employer 3] [Employer 4]	45,000 25,780 Total $70,780
30 June 2010	[Employer 3] [Employer 4] [Employer 6] (plus reportable fringe benefits)	45,000 30,513 7,044 Total $82,557 (27,626)
30 June 2011	[Employer 3] [Employer 4] Allowances (plus reportable fringe benefits)	24,230 23,352 8,567 16,600 Total $72,749 (29,428)
Total	(plus reportable fringe benefits)	$365,593 ($57.054)

94This includes income the wife earned after the date of separation in September 2009.

95By 2007 the wife had rented an apartment in [Suburb A] in Perth to facilitate her employment in Perth. She purchased the Mitsubishi for her transport needs. In 2008 she changed apartments to what she saw as a more suitable venue in [Suburb B].

96The wife says that her external work as a consultant helped to pay the parties’ living expenses and also went towards supporting the farm endeavours. Whilst I accept the income generated by the wife from her activities off the farm may have been used to some extent for the parties and the farm, I find that the majority of the income was used for her own benefit, either in supporting her living off the farm or enabling her to travel home to America on a regular, although not extravagant, basis.

•Post-separation

97The wife removed her belongings from Redland in early 2010. She continued to work in Australia up until about 15 December 2010 when she resigned from all her employment positions. The wife was able to earn a reasonable income after separation. She returned to the United States in December 2010 and moved in with her present husband. She deposes to assisting him in his carpentry business and assumed the role of Chief Financial Officer, albeit earning a nominal wage. In April 2011 she obtained employment as Chief Financial Officer at [Company Q], earning a salary of $US140,000 per annum.

98The wife started to rent out the US property in October 2010.

99A grandparent passed away leaving her a total of $US25,955 in December 2011.

100The US and, to a lesser extent, the farming property, have decreased in value since the date of cohabitation or in relation to the US property from the date of purchase. The husband describes problems with drought and difficulties for the farming sector generally. The wife also talks of an economic downturn in America.

101The agreed historic valuation of the farming property describes a significant deterioration in the terms of trade in the agricultural sector between 2003 and 2012. This deterioration has contributed to a general decline in maintenance throughout much of the agricultural area.

102Given the financial climate both here and overseas, I find that the decrease in these assets is not as a result of the actions of either party.

103Since the parties separated the husband has continued to work the farm in spite of some health difficulties. He has continued to maintain the property as best he can and conserve it as an asset generally. This has been in the face of what he describes as tough economic circumstances.

104The wife has sought that significant post-separation liabilities be taken into account. Apart from the legal fees, I have included her debts. However, the wife was earning a considerable income in Australia post-separation. She earned a wage whilst working for her present husband and what I consider to be relatively swiftly, secured reasonable employment with Company Q in April 2011. During this period of time the husband continued to work on the farm as he had always done.

105The US property was initially to be used by the wife when she returned to the United States for holidays, which occurred without the husband, on an annual basis. She said for this reason she did not rent it out initially. The property remained vacant until October 2010. The wife serviced the mortgage payments and outgoings in relation to the property from the date of its acquisition. The Nissan motor vehicle which was garaged there was traded in in February 2011 for the wife’s present Volkswagen motor vehicle.

•Superannuation

106The husband, like his father before him, has no superannuation. The wife during the period of her employment in Australia acquired a modest amount in three separate plans. This was as a result of her work off Redland. There was no evidence about how the superannuation assets should be treated or when the wife is able to access them. I accept the wife made the sole contribution to them, just as the husband was working the farm over that period of time. I have included the plans in the pool, but accept the wife may not be able to access them immediately.

•Conclusion on contributions

107The husband's initial contribution to the asset pool was overwhelming. During the entirety of the relationship it was the husband who continued to farm the property in difficult economic circumstances. In the early years of their marriage the wife worked on the farm alongside the husband and should be given credit for this. She also did the bookkeeping for most of the marriage. Once the wife left the farm to concentrate on external activities, I am not satisfied that her contribution matched that of the husband's in terms of either a direct financial contribution, a contribution to the farming property or a contribution to the parties’ welfare generally. I find she has exaggerated her contribution. She did pay the US mortgage, but she did not initially rent the property in order to counteract some of that expense. She says she spent about four weeks a year in the property herself during the marriage.

108After the parties separated I am not satisfied that a lot of debts she has included in the schedule were used for her reasonable expenses, especially given her continuing income in Australia and her circumstances in the United States. Some of the debts relate to acquisitions made and money spent whilst cohabiting with her present husband.

109Overall, in this relatively short relationship of around six and a half years, I consider the husband to be entitled to between 82.5 and 85 per cent of the parties’ net assets.

Section 75(2) factors

110Neither party sought any adjustment as a result of what are primarily prospective factors. I consider this to be appropriate.

Just and equitable

111The wife’s position at trial was that the assets should be divided on a 75/25 per cent basis in favour of the husband given his initial contribution. In his Papers for the Judge the husband says his contribution should be assessed at 85-90 per cent. After all the evidence the wife’s counsel, Mr Smith, agreed with the husband's counsel, Mr Berry, that this may not be a case amenable to a precise percentage split. I accept that is correct in the particular circumstances here.

112The husband says each party should retain their own assets as that is just and equitable. If there was to be any payment to the wife, he says it would be modest at best.

113Given the percentage allocation on the basis of each party’s contribution, the outcome is that the wife will receive a payment from the husband of between $187,659 and $213,003. This is based on the husband retaining his net assets worth $1,049,346 and the wife retaining her net assets, including her superannuation, of $-35,597.

114The wife will have her superannuation funds and the unit in [the] US. She has substantial debt. The funds she will receive will cover those debts, some of which I am satisfied are related to her present marriage. The husband will have to borrow money to pay the wife. Some part of the farm may need to be further encumbered or sold. His debt will be substantial. However, I consider an appropriate outcome to be that he pays the wife the sum of $200,000.

Costs

115Paragraph 5 of the orders of 31 January 2013 provide that:

5The Intervener, [MATTHEW RENDLE], is to pay the applicant’s, [ALLISON RENDLE], costs thrown away as a result of the adjournment on a client/solicitor basis, to include a certificate for Counsel and instructing solicitor.

116At the conclusion of the trial I was handed a schedule of the wife’s costs thrown away as a result of such adjournment. The wife sought:

Description Work	Cost
Client’s airfare (from United States to Perth and return) (see Amex statement)	3,671
Rental Car	250
Counsel’s fees (1 day trial and 1 day preparation)	7,000
Instructing Solicitor’s fees (1 day of trial. Hourly rate $320 excluding GST)	1,760
Hearing Fee (2 days at 2013 rate of $765 per day)	1,530
Total	$14,211

117It is agreed that the wife’s costs thrown away should be paid by the interveners, however, the exact amount sought is in dispute.

118The wife has sought an airfare from the United States to Perth and return. She has also sought the provision of the costs of a rental car. These relate to the continuation of the trial. I made it clear when the matter was adjourned that there was no need for the wife to attend court in person, but she should rather make herself available, if she wanted, by video or by telephone. She had completed her evidence.

119Mr Smith argued that as a party to the proceedings it was appropriate that she attend, she wanted to attend and the adjournment was not her fault. I find some merit in that argument, but in all the circumstances of this case, and given the fact that the main witnesses had already given evidence, she could have taken steps to reduce her costs. I do not intend to allow her the amount claimed for a rental car and will reduce her airfare by one half. In these circumstances she will receive her costs incurred attending the resumed hearing to be fixed at $1,835.50.

120What is agreed is that the wife’s counsel is to receive the equivalent of a one day refresher fee. This is appropriate. I find it is likely an extra one day of trial would have been necessary in any event and I will not, therefore, make an order for payment of that amount. Thus, counsel’s fees will be fixed at $3,500. I accept the instructing solicitor’s fees of $1,760 should also be paid.

121As a result of the adjournment, the wife paid a further two days’ hearing fee. I do not consider it appropriate that she bear this expense. She was in a position to proceed during the original hearing and any further evidence that has been put forward is by the husband in the form of valuation evidence and the interveners in having further witnesses available. I intend that the husband and the interveners each contribute an amount of $765 to the wife to reimburse her for the total hearing fee she has paid for the extra two days.

122In total, the wife’s costs to be paid by the interveners are $7,860.50. The husband is to pay her $765.

Orders

1Within 60 days from the date of these orders the husband pay, or cause to be paid, to the wife the sum of $200,000.

2Any right, title and interest of the wife in and to the property of the husband including:

(a) the Redland farm; and

(b) the business trading as Rendle & Co

vest in the husband.

3Within 30 days from the date of these orders the wife do all acts and things and sign all documents necessary to transfer to the husband all of her right, title, estate and interest in the following:

(a) the Nissan utility vehicle; and

(b) the Ford vehicle.

4The husband indemnify and keep indemnified the wife in relation to all income tax, capital gains tax, goods and services tax, other duties including penalties and fines (if any) arising out of the involvement of the wife as a partner in Rendle & Co.

5The interveners pay the wife’s costs thrown away as a result of the adjournment of the hearing on 31 January 2013 fixed in the sum of $7,860 ($765 of which is reimbursement of an additional days hearing fee) within 35 days.

6The husband pay the wife $765 as reimbursement of an additional days hearing fee paid by her within 35 days.

7 All applications and responses otherwise be dismissed.

I certify that the preceding [122] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate