Richard and Richard

[2018] FCCA 55

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICHARD & RICHARD [2018] FCCA 55

Catchwords:
FAMILY LAW – Property – whether one party is in possession of a cash sum – assets disposed of post-separation – add-backs.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Bevan & Bevan (2013) FLC ¶93-545

McMahon & McMahon (1995) FLC ¶92-606

Norbis v Norbis (1986) FLC ¶91-712

Polonius &York [2010] FamCAFC 228

Stanford & Stanford (2012) 247 CLR 108

Vass & Vass [2015] FamCAFC 51
Zalewski &Zalewski (2005) FLC ¶93-241

Applicant: MR RICHARD

Respondent: MS RICHARD

File Number: HBC 512 of 2015

Judgment of: Judge Baker

Hearing dates: 1 December 2017, 19 December 2017

Date of Last Submission: 19 December 2017

Delivered at: Hobart

Delivered on: 17 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Trezise

Solicitors for the Applicant: Dobson Mitchell Allport

Counsel for the Respondent: Ms Mooney of Counsel

Solicitors for the Respondent: Wallace Wilkinson & Webster

ORDERS

1. The Husband shall do all acts and things required to transfer to the wife all his right, title and interest in the former matrimonial home situate at Property A in Tasmania more particularly described in Certificate of Title Volume (omitted).

2. The Husband and the Wife shall do all acts and things required to transfer the sum of $75,200.00 from the (omitted bank account) in the joint names of the parties to an account of the Husband’s choosing, with the balance to be transferred to an account of the Wife’s choosing, and shall then cause the closure of the said (omitted bank account).

3. That save as it otherwise specifically provided for in this Order the Wife shall relinquish to the Husband and where necessary transfer to him any claim or interest which she may have in or to:

   (a)Any motor vehicle or motorcycle in the Husband’s possession and/or registered in his name;

   (b)All cash at bank or invested in the sole name of the Husband;

   (c)All personalty, chattels, tools, furniture and effects in the Husband’s name or in his possession;

4. The Husband shall relinquish to the Wife and where necessary transfer to her any claim or interest which he may have in or to:

   (a)The business known as the Business A.

   (b)Any motor vehicles in the Wife’s possession and/or registered in his name;

   (c)All cash at bank or invested in the sole name of the Wife;

   (d)All personalty, chattels, tools, furniture and effects in the Wife’s name or in her possession.

5. That unless otherwise specified in this Order:

   (a)Each party shall be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to this Order;

   (b)Each party shall be liable for their respective debts and hereby releases the other from any and all personal debts owing or alleged to be owed one to the other.

6. Each of the parties shall do all such things and execute all such documents as they shall be required to do and execute to give effect to the terms of this Order.

7. In accordance with section 90MT(4) of the Family Law Act 1975 (Cth) (‘the Act’), a base amount of $37,950.00 will be allocated to the Wife, Ms Richard, out of the interest of the Husband, Mr Richard, in the (omitted superannuation account)

8. Pursuant to section 90MT(1)(a) of the Act, whenever the Trustee of (omitted superannuation account) makes a splittable payment in respect of the Husband’s interest in (omitted superannuation account) the Trustee will:

   (a)Pay to the Wife or her legal and personal representatives the entitlement to calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)Make a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.

9. The operative time for paragraph 7 above is four (4) business days after the service of a certified copy of this Order on the trustee of (omitted superannuation account).

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Baker delivered this day will for all publication and reporting purposes be referred to as Richard & Richard.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 512 of 2015

MR RICHARD

Applicant

And

MS RICHARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the husband for property adjustment orders.

2. The parties were married on (omitted) 1994 and separated on 19 June 2014. There are three children of the marriage, [X] born in 1993 (‘[X]’), [Y] born in 1995 (‘[Y]’) and [Z] born (omitted) 2005 (‘[Z]’). [Z] is the only dependent child, and she lives primarily with the wife.

3. The wife owns and runs a (business omitted), the ‘Business A,’ in Town A. The husband was employed as a (occupation omitted) until recently. He stopped work due to an injury to his rotator cuff and he has applied for Centrelink benefits. He moved to live in Town B in late 2016.

Proposals

1. The husband is seeking an equal division of the property. He seeks an order that the former matrimonial home be sold and the net proceeds be divided; the savings be divided; each party retain the assets in his or her own possession; and his superannuation be split equally.

2. In closing, counsel for the husband submitted that, should the Court determine an adjustment in the wife’s favour for section 75(2) factors, the adjustment should be 5 per cent.

3. The wife is seeking a 70/30 per cent division of the property and superannuation in her favour, or in the alternative an 80/20 per cent division, if cash of $80,000 is considered by the Court as a relevant s.75(2)(o) factor, rather than part of the asset pool. She therefore seeks an order that she retain the matrimonial home; the savings be divided; the husband retain his superannuation and each party retain the property in his or her possession.

4. In closing, counsel for the wife submitted that, should the Court determine that the husband’s superannuation be considered in a separate pool, the superannuation should be divided equally.

Issues in dispute

1. The main issue in dispute is whether cash, which was hidden in a shed at the matrimonial home during the marriage, is in the possession or control of one of the parties.

Relevant Law

1. Section 79 of the Family Law Act 1975 (Cth) (‘the Act’) provides that the Court may make orders in property settlement proceedings to alter the interests of the parties to the marriage in the property.

2. Section 79(2) of the Act requires that any such order must be ‘just and equitable’. Section 79(4) provides the matters which are to be taken into account when considering what order should be made. This sub-section provides as follows:

   (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

3. The Court must satisfy the requirement of s.79(2) before it examines what order should be made pursuant to s.79(4).[1]

   [1]Stanford & Stanford (2012) 247 CLR 108.

4. Consequently, in order to determine whether it is just and equitable to make an order, the existing legal and equitable interests of the parties in the property must be identified. Having determined that it is just and equitable to make an order, a consideration will then be made about what order should be made assessing the factors in s.79(4).

5. In this matter, the wife seeks to include in the property items that the husband has sold, including two excavators, firearms, a motorcycle and a ski boat. She also contends that the husband has in his possession cash of $80,000, which she seeks to include in the property.

6. Since the decision of Stanford & Stanford,[2] the courts have been more cautious about adding back property which no longer exists. Courts have increasingly dealt with add-backs under s.75(2)(o).

   [2] (2012) 247 CLR 108.

7. In Bevan & Bevan,[3] the Full Court discussed the practice of courts making ‘notional add-backs’ to property to account for the unilateral disposal of assets. At paragraph 79 Bryant CJ and Thackeray J stated:

   We observe that “notional property” which is sometimes added back to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them” and thus is not amenable to alteration under s.79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage-and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s.79(4) and in particular s.75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.

   [3] (2013) FLC ¶93-545.

8. In the decision of Vass & Vass,[4] the trial judge added back the sum of $25,000 withdrawn by the husband from the parties’ bank accounts post separation. The Full Court noted at paragraph 138 as follows:

   There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545; 247 CLR 108 is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.

   The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s.79(2) as a separate enquiry from any adjustment to property interests by reference to s.79(4) if a consideration of s.79(2) reveals that it is just and equitable to alter existing interests in property.

   [4] [2015] FamCAFC 51.

9. Following the approach of the Full Court, proper consideration must be given to existing interests in property when exercising the discretion to ‘add-back’ property.

Credit of the parties

1. The husband was not an impressive witness. He was defensive and his evidence was confusing at times. An example of the unsatisfactory nature of his evidence was his evidence that he could not recall an incident of the wife photographing the cash in the shed and of him taking the camera from her. This evidence was not credible. His evidence about the cash was also not credible. I consider that he took cash from the home. I discuss this further on in these reasons.

2. Another example of the husband’s unsatisfactory evidence was when he said that he borrowed money from his brother and cousin to pay for [Z]’s three trips to Queensland. He admitted that he was earning good money in December 2016, when one of the trips occurred. When asked whether he was sure the money was borrowed from his brother and cousin he then said ‘I can’t remember back that far to tell you the truth’.

3. Another example was when he denied that the wife paid for food and general living expenses whilst he paid for petrol and the ‘big ticket’ items. When he was referred to his bank statements, which did not demonstrate withdrawals from his account for general living expenses, he agreed that he had not purchased these items during the period covering the statements.

4. The wife was a credible witness, who was responsive and made concessions. She gave evidence that she and the husband worked very hard, the husband had a strong work ethic and wanted to provide for her and the children, and they were both good parents. She was open about receiving rental income from a friend and not declaring it to the Australian Tax Office. In respect of the evidence about the cash, I prefer her evidence to the evidence of the husband about who retained the cash after separation.

The parties’ interests in property

1. The husband asserted in his financial statement sworn and filed on 30 November 2017, one day prior to the trial date, that the value of a (car model omitted) was $2,000. In his financial statement filed 7 July 2015, he asserted it was worth $5,000. Similarly, the husband asserted on 30 November 2017 that the value of a trail bike was $1,500, but asserted previously that it was $3,000. The wife disputed the recent values. There was no time for her to obtain valuations of these disputed items. In these circumstances, I intend to adopt the previous values given by the husband.

2. The husband sold a (omitted) excavator for $7,500. He asserted in his 2015 financial statement that it was worth $17,500. He sold a (omitted) excavator for $8,000. He asserted in his 2015 financial statement that it was worth $25,000. He also sold a (omitted) motorbike for $5,000. The wife submitted that the husband sold them under value and this should be taken into account by the Court. In respect of the (omitted) excavator, the husband said during cross-examination, ‘what I think it is worth and what I can get for it is two different things.’

3. I am not persuaded by the evidence that the husband has sold the items under their true value. There were no expert valuations undertaken. The husband was not challenged about the details of their sales. The husband has had the benefit of their sale proceeds, which will be taken into account under s.75(2)(o). I do not intend to add back items which no longer exist.

4. The (omitted motorcycle) and the (car model omitted) purchased by the husband post separation will be included in the property.

5. In 2010 the wife commenced a (omitted) business in Town A.  She closed it in 2014 and commenced a new (business omitted) business in Town A.  It has been valued and has a value to owner of nil. It provides the wife with an income. The wife has purchased a (car model omitted) motor vehicle post separation. The (business omitted) business and the (car model omitted) will also be included in the property.

6. The wife has incurred credit card debts since separation amounting to around $8,000. She gave evidence that these liabilities are primarily for legal costs. The wife does not seek to include the liabilities for division between the parties. Both parties were legally represented and liable for legal costs. I consider that the wife’s credit card liabilities should not be included in the pool.

Discussion about cash

1. The wife’s case is that cash of $80,000 exists and the husband has it in his possession. The husband denied that the parties ever had the sum of $80,000 cash and denied he took cash from the home. He asserted that the wife has retained cash of around $10,000.

The husband’s evidence

1. The husband deposed that he and the wife had both previously had access to around $10,000 in cash savings kept in a shed (‘the cash’). He said that the cash was retained by the wife. He asserted that the wife’s allegation, that he had retained approximately $80,000 cash at separation, was ‘bizarre’. He said ‘the only cash sum was the amount of approximately $10,000.00 and, as I was only permitted to return to the home on the one occasion under Police escort, I was simply unable to gain access to those funds.’

2. During cross-examination, the husband explained that the amount of the cash varied. He said it was at times as low as $2,000 and as high as $25,000 when the family moved to Tasmania from Brisbane. He claimed he would be too scared to keep $80,000 worth of cash at home, and restated that they had never had that sort of money in cash. He agreed he has always operated by withdrawing his pay out of his bank account and keeping it in cash.

3. When asked if he was seriously alleging the wife took the cash, he said he did not know where the money has gone. He said, ‘I don’t know how much money Ms Richard has retained exactly, I presume about $10,000…when we split up I don’t know how much cash money Ms Richard had, I don’t know how much money she had in the (business omitted).’ He said he did not know how much money was in the shed when they separated, and said, ‘when you got money in the shed you don’t go and count it every day, that was family money so whoever needed to use it, used it.’

4. Of the amount left at separation he said, ‘the money varies, it depends what we used it on.’ When asked how much was there the last time he counted it, he said ‘probably about $25,000, maybe, $15,000, I don’t know’. He said it was last counted months before they separated.

5. The husband agreed that he told his son [Y] he had cash, but he was not talking about cash from the shed. He was talking about cash from selling items such as an excavator, which was sold in September 2014. He denied telling [Y] in April 2016 that he still had the cash. I do not accept his evidence about this.

6. The husband agreed that he organised for his sons and one of his friends, Mr S, to go to the house and remove items from the shed in or around September 2014. They obtained his tools and motorbike. He agreed the police were called. He was not there. He said that he and the wife separated three months before that.

The wife’s evidence

1. The wife deposed that at the time of separation there was an amount of money hidden in the shed on their property. She helped the husband count it on ‘numerous occasions’ and ‘was aware the amount was between $75,000 and $80,000.’

2. She was concerned that there was no proper record of the cash in the shed, so she decided to count and photograph it. She recalled that the cash sum ‘…was a bundle of notes, all hundreds and about two inches thick. It was secured with a number of rubber bands, wrapped in rags and then more rubber bands.’ She un-wrapped the cash and took two or three photos of it and then re-wrapped it and returned it to its hiding place. The wife said that the husband saw her exit the shed. He was furious and snatched the camera from her. He deleted the photos. She was not allowed to count the money again following this incident, and that was the last time she saw it.

3. During cross-examination, the wife said that she could not find cash of $70,000 to $80,000 when she looked for it after they separated, due to the many hiding places used by the husband.

[Y]’s evidence

1. [Y] deposed that he lived with his parents until late 2014. He deposed that, ‘from time to time my father would tell me about the cash and the amount that he had, usually between $70,000.00 and $80,000.00.’ 

2. He saw the cash on a number of occasions as either a bundle or roll of notes. He described that ‘it was one wad, secured by rubber bands and wrapped up in rags. The amount was usually in hundred dollar notes with some fifties.’ He handled the cash one or two times in the shed. He saw his father count it and either add or take from it ‘depending on his needs.’ He did not see his father remove the cash after separation.

3. He said that ‘after dad moved out of the former matrimonial home, and was living in a unit on the (omitted), he told me he still had the money.’ [Y] further deposed in 2016:

   ‘I am aware that following separation from my mother, he split the money up into a number of bundles and then hid it. I don’t know how much was in each bundle. My dad told me and showed me some of the hiding locations … I am aware he would move it around back and forth. I didn’t know all of the places where he hid it…The last time I spoke to my father about the cash would have been April this year. Approximately in April of this year my father discussed the money with me, confirming that he still had it. He did not mention how much he still had but he was definite that he had it.’

4. He said that the last time he spoke to his father was about a year ago. He had just sworn his affidavit. His father came to work because he had found out about the affidavits and said ‘don’t speak to me ever again and don’t contact me.’

5. I consider that [Y] was a credible witness. I prefer his evidence to the father’s evidence and consider the father told him he still had cash from the shed in April 2016.

[X]’s evidence

1. [X] saw the cash at the family home on a number of occasions when he lived there. He never handled it. He said that he was given money from the cash to purchase his first car. He also borrowed money from the cash which he paid back.

2. He recalled that ‘on the occasions when I saw the cash, it was a stack of bills wrapped in rubber bands and some form of rag covering it. It was mainly hundred dollar bills and fifty dollar bills.’ He recalled being present on occasions when his father would count the money. Under cross examination he said this occurred multiple times over the years. He did not know the hiding spots in the shed. He said that his father would go to the shed and return to the house with cash.

3. [X] said in respect of the father’s return to the shed after separation, ‘I was home the day of his arrest and he did go to the shed…he pulled up in his ute, went to the shed and drove off. I was at home… saw him pull in…’ He did not see him take the cash.

4. [X] was a credible witness and I accept his evidence.

Conclusion about cash

1. I do not accept the husband’s evidence that he did not take the cash from the shed. I do not accept his assertion that the wife retained a portion of it.

2. However, I am not able to make a finding about the amount of cash the husband retained or about the amount of cash he still has. It is unclear from the wife’s evidence when she counted the cash with the husband. It is not clear when she photographed the cash and how much cash there was when she photographed it.

3. The husband admitted that there was cash of around $25,000 months before the parties separated.

4. In these circumstances, I intend to take into account that the husband has had the benefit and use of a substantial cash sum, likely to have been around at least $25,000, as a factor under s.75(2)(o).

Conclusion about property

1. I find that the parties have the following property and superannuation:

   Property A         $205,000

   (omitted savings account)  $82,000

   (omitted car model) (W)  $5,000

   Business A (W)  Nil value to owner

   (omitted motorcycle) (H)  $8,000

   (car model omitted) (H)  $6,000                   

   (car model omitted) (H)  $5,000

   (omitted) trail bike (H)  $3,000

   (car model omitted) (W)  $7,000 

   Household contents (W)  $3,000

   Total Property  $324, 000

   (omitted superannuation account) Superannuation (H)    $75,899

Is it just and equitable to make a property order?

1. The parties were married for 20 years and had three children. The matrimonial home is registered in joint names. I consider it is just and equitable that a property adjustment order be made.

Approach to be taken

1. In property proceedings, the Court may make such order as it considers appropriate. The usual approach is for the Court to consider the property of the parties as an overall pool. However, it is also open to the Court to consider the assets of the parties on an asset-by-asset approach. In Norbis v Norbis,[5] Mason and Deane JJ, with whom Brennan J agreed, said:

   …Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.[6]

   [5] (1986) FLC ¶91-712.

   [6] Ibid 75,168.

2. Generally, the asset by asset approach has been adopted by the Courts in those cases where the marriage is of a short duration, or where the parties have strictly separated their assets.[7]

   [7] McMahon & McMahon (1995) FLC ¶92-606.

3. The wife argued that the property obtained post separation and the liabilities incurred post separation should be in a separate pool and should not be divided between the parties. The husband argued that there should be a one pool approach for all the property and a separate pool for his superannuation.

4. In Zalewski &Zalewski,[8] Finn J suggested that the Court adopt an asset-by-asset approach in cases where parties have built up substantial assets or liabilities between separation and trial:

   It is my impression that there are currently coming before the Court a significant number of cases in which the period between the parties’ separation and the hearing of their property settlement proceedings is substantial. The delay seems often to arise, at least in part, because the parties have initially reached some form of informal (or even formal) settlement from which one party later resiles (often for good reason). In these long separation periods, the parties will usually have built up substantial new assets or incurred substantial liabilities. In an endeavour to satisfy the parties that any orders which are eventually made by the Court in these somewhat complicated cases are just and equitable, it can, in my view, be very useful for Judges to assess contributions to property on an asset by asset basis…[9]

   [8] (2005) FLC ¶93-241.

   [9] Ibid 79,978.

5. In Polonius &York,[10] the Full Court of the Family Court adopted this approach. The Full Court held:

   In a case such as this, where there was a marriage of long duration and a lengthy period of separation before the hearing of applications for property settlement, during which time significant assets were accumulated by one or both parties, it should indicate that in such circumstances it may be more useful to undertake an assessment of contributions on an asset by asset, or, category of asset by category of asset basis…

   [10] [2010] FamCAFC 228.

6. In this matter there has been a period of around three years between the date of separation and the trial. This is not a matter where the parties have built up substantial assets or incurred substantial liabilities since separation. I am not persuaded that the approach contended by the wife should be taken.

7. In respect of superannuation, there was no agreement about the approach. The husband adopted a two pool approach. He is seeking a splitting order in respect of his superannuation entitlement.   The wife’s position was that the superannuation should be included in one property pool for division.

8. There was no evidence that the husband’s superannuation is property within the definition of s.4 of the Act. A superannuation split is being sought by the husband. I am of the view that it is appropriate for the superannuation to be included in a separate pool.

Contributions

1. Neither party owned assets of any substantial value at the commencement of the relationship.

2. The husband worked as a concreter and undertook some household and garden tasks. Both parties contributed by renovating a home.

3. The wife earned an income from cleaning jobs and she created a cleaning business which she sold for $7,000. She undertook other casual work and in 2010 she opened a café from which she earned income. She was responsible for the majority of parenting and homemaking.

4. The parties separated for several years between 2004 and 2006. The wife was the primary carer of the children. She did not receive financial support from the husband during this period.

5. In December 2013, the husband burned the wife’s bookwork, which contained all of her business records, in the fireplace. She reported the incident to police and they issued a police family violence order protecting the wife from the husband.

6. The following day the wife arrived at work to find that her shop had been ‘ransacked’. She described in her affidavit that the ‘coffee machine was missing. There was water leaking from the broken coffee machine fittings. There were broken cups and coffee beans spilled everywhere. The back door had been pried open. I could not operate the business.’ She also noted that the recording box for the CCTV system had been removed.

7. As a result of the ‘ransacking’ of her business, the wife had to rent a coffee machine for $200 per month. She also had to try and rebuild her business paperwork. This involved attempting to obtain nearly two years’ worth of receipts from suppliers, many of which could not be recovered. She was assisted by an accountant. This process cost approximately $1,200. The damage was not covered by insurance due to the husband’s involvement. She has been put to expense by the husband’s conduct.

8. After separation, the wife started up a new (business omitted) with the assistance of her parents with a loan of $20,000. The wife used some of the equipment and furniture from the previous business.

9. The wife has had the benefit of living in the home after separation, whilst the husband has paid rent elsewhere. The wife has paid all outgoings on the home apart from some plumbing work, for which the husband paid a sum of approximately $1,200.

10. Since separation the wife has been primarily responsible for parenting [Z] and for maintaining her. The husband paid child support of $42 per week until November 2016.

11. The wife has purchased a (car model omitted) motor vehicle to which the husband made no contributions. She also commenced a business to which the husband has not contributed.

12. I consider that the contributions favour the wife to the extent of 55 per cent of the property and the husband 45 per cent.

Section 79(4)(e)

1. The husband is 47 years of age. He was employed as a (occupation omitted) for (employer omitted) in Hobart until November 2016. He is currently not working due to an injured rotator cuff. He is certified as medically unfit to work until February 2018. I consider that having regard to his work history and work ethic, he has the capacity to obtain future employment.

2. The husband has applied for Centrelink, and believes he will receive around $250 per week. He has not yet received a payment. He is planning to return to work after shoulder surgery in the next 6-12 months.

3. He pays $140 per week rent and lives by himself. Since he moved to Queensland, the wife has been solely responsible for the care of the child [Z].

4. The husband has not paid any child support to the wife since he worked at (employer omitted). He paid $42 per week when he was working. He is in arrears of $6,500. From his income tax refund, the wife will receive $4,000, which means that he will then be $2,500 in arrears.

5. The wife is 42 years of age and is self-employed as the proprietor of Business A, which provides her with a small income. She receives $250 per week after expenses from Business A and $70 per week from Centrelink.   

6. The wife lives with her daughter. In June 2017 a friend, Mr O, moved in with them. He does not assist with expenses. He paid rent of $100 per week, but has not paid for a while, due to his financial situation. He and the wife take turns to cook and to purchase food. He owes her rent for a few weeks. He has promised he will pay her back.

7. The wife has the main financial burden of maintaining [Z], who is 11 years of age. All school costs, levies, excursions, books and associated expenses are paid for by the wife.

8. The wife has credit card debts which primarily relate to her legal costs.

9. The effect of the findings as to contributions is that the husband will receive property to a value of $145,800 and the wife will receive property to the value of $178,200. There is a disparity of property between them of $32,400.

10. The husband has had the benefit or use of savings. During cross-examination, when shown bank statements of his (omitted) account, he agreed that in June 2014, he withdrew money from his bank account in lump sums of $1,000 out of ATMs. He agreed that he also withdrew a lump sum of $5,000. He agreed that in March 2014 he had $21,500, by June 2014 he had $6,500, and by October 2014 he had $2,500 in the account.

11. He also had the benefit or use of $22,500, which he received from the sale of assets of firearms ($1,000), excavator ($8,000), motorcycle ($5,000), excavator ($7,500), and ski boat ($1,000).

12. The husband did not explain how he has used the money, although he has purchased a (car model omitted) motor vehicle ($6,000) and a (omitted motorcycle) motor bike ($8,000), which are included as part of the property for division and are taken into account.

13. There will be an adjustment to the wife under s.75(2)(o) for the above funds retained by the husband, funds from the sale of assets, and for the cash from the shed retained by him.

14. I consider that there should be an adjustment in the wife’s favour of 15%. The effect of the orders which I will make are that the husband will receive the following:

    (omitted motorcycle)                        $8,000

    (car model omitted)        $6,000

    (car model omitted)   $5,000

    (omitted) trail bike  $3,000

    Cash from (bank omitted)  $75,200

    Total  $97,200

1. The wife will receive the following:

   Property A$205,000

   Business A   nil

   (omitted car model)   $5,000

   (car model omitted)  $7,000

   Household contents                 $3,000

   Cash from (bank omitted)  $6,800

   Total   $226,800

Superannuation

1. The husband’s superannuation entitlement with (omitted superannuation account) has been accumulated during the marriage and post separation.

2. The wife has indirectly contributed to the superannuation entitlement by enabling the husband to obtain employment, whilst she was primarily responsible for the care of the children and for homemaking. She also paid for household bills and did not contribute to a superannuation of her own.

3. After separation she indirectly contributed by continuing to care for [Z] and having the primary responsibility for her maintenance.

4. I consider that the contributions of the parties are equal.

Section 79(4)(e )

1. The wife does not have a superannuation entitlement.

2. Both parties have the capacity to work and earn income and can contribute to superannuation until retirement.

3. I consider that the entitlement should be divided equally, so that each party will retain $37,949.

Conclusion

1. Each party will therefore receive property and superannuation.

2. I am of the view that the orders which I will make are just and equitable.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of Judge Baker

Date: 17 January 2018