Roberts and Roberts

FAMILY COURT OF AUSTRALIA

ROBERTS & ROBERTS

[2007] FamCA 1242

FAMILY LAW – PROPERTY – Initial contributions – Contributions during marriage – Distribution of plant, machinery and chattels

Family Law Act 1975 (Cth)

Williams & Williams [2007] FamCA 313
Bremner & Bremner (1995) FLC 92-560
Pierce & Pierce (1999) FLC 92-844
Robb and Robb (1995) FLC 92-555
Norbis & Norbis (1986) FLC 91-712
Lenehan & Lenehan (1987) FLC 91-814
Zyk & Zyk (1995) FLC 92-644

APPLICANT:

Mrs Roberts

RESPONDENT:

Mr Robert

FILE NUMBER:

NCF

251

2006

DATE DELIVERED:

18 October 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Watts J

HEARING DATE:

10 - 13 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Boyd Olsen Lawyers

SOLICITOR FOR THE RESPONDENT:

Rugendyke Lawyers

Orders

IT IS ORDERED THAT:

Pursuant to Section 79 Family Law Act 1975 an order is made in the terms of paragraphs 2 - 27 below.

Orders which apply for the wife to obtain B property

By 3pm on 29 November 2007 (“the first settlement date”) the wife shall pay to the husband the sum of $67,075 (“the wife’s sum”) and do all things and pay all necessary monies to discharge the mortgage to the ANZ Banking Group Ltd secured against the property at B, being all that piece and parcel of land more fully described in folio identifiers …, … and … (“[B property]”).
On or before the first settlement date, the wife will pay all stamp duty in respect of the transfer document (if any) and all outstanding rates and taxes in respect of B property.
On or before the first settlement date, the husband is to sign all documents to effect the transfer of B property to the wife and any documents which the husband is required to sign to discharge the mortgage to the ANZ Banking Group Ltd secured against B property.
Contemporaneously with the payment referred to in paragraph 2, the husband will transfer to the wife his right, title and interest in B property.

Orders which apply for the husband to retain B property

In the event that the husband was ready, willing and able to comply with the provisions of paragraphs 4 and 5 and the wife has failed to comply with all her obligations under paragraphs 2 and 3 on or before the first settlement date, then by 3pm on 24 January 2008 (“the second settlement date”) the husband shall pay to the wife the sum of $534,445 and do all things and pay all necessary monies to discharge the mortgage to the ANZ Banking Group Ltd secured against the B property.
On or before the second settlement date, the husband will pay all stamp duty in respect of the transfer document (if any) and all outstanding rates and taxes in respect of B property.
On or before the second settlement date, the wife is to sign all documents to effect the transfer of B property to the husband and any documents which the wife is required to sign to discharge the mortgage to the ANZ Banking Group Ltd secured against B property.
Contemporaneously with the payment referred to in paragraph 6, the wife will transfer to the husband her right, title and interest in B property.
The times referred to in paragraphs 2 to 9 will be of the essence unless the parties otherwise agree in writing.

Sale of B property

In the event that B property has not been transferred to one or other of the parties as a result of paragraphs 5 or 9, the parties shall do all acts and things and sign all documents necessary to list B property for sale by auction with the solicitor for the wife to have the carriage of the conveyancing in respect of the sale (subject to consultation with the solicitor for the husband) and:
11.1.That if the parties are unable to agree on the agent with which to list the property then the property shall be listed with such agent as is nominated by the President for the time being of the Real Estate Institute of New South Wales.
11.2.That if the parties are unable to agree upon the reserve price for the property then the reserve price shall be determined by the agent with whom the property is listed for sale whether by agreement or pursuant to this order.
11.3.Upon completion of the sale the parties shall apply the proceeds as follows:-
11.3.1.In payment of agent’s commission and expenses if any;
11.3.2.In payment of legal costs and disbursements in respect of the sale;
11.3.3.In discharge of the mortgage to the ANZ Banking Group Ltd;
11.3.4.$457,590 to the wife;
11.3.5.50% to the wife (subject to paragraph 12);
11.3.6.50% to the husband (subject to paragraph 12).
In the event that the net proceeds of the sale of B property after the payments referred to in paragraphs 11.1 and 11.2 above exceed the amount of $700,000 then the wife shall receive 70% of the additional amount and the husband will receive 30% of the additional amount but in the event that the net proceeds of B property after the payments referred to in paragraphs 11.1 and 11.2 above is an amount less than $700,000 then the wife will have deducted from her share 70% of the shortfall and the husband have deducted from his share 30% of the shortfall.
In the event that B property is transferred to the wife pursuant to paragraph 5, the wife shall from the date of the transfer be solely responsible for and indemnify and keep indemnified the husband in respect of all debts and liabilities of L Pty Ltd (“the company”) and the husband shall do all things and sign all documents necessary to transfer to the wife or her nominee the whole of his interest in B property and shall contemporaneously resign all offices in the company.
In the event that B property is transferred to the husband pursuant to paragraph 9, the husband shall from the date of the transfer be solely responsible for and indemnify and keep indemnified the wife in respect of all debts and liabilities of L Pty Ltd (“the company”) and the wife shall do all things and sign all documents necessary to transfer to the husband or his nominee the whole of her interest in B property and shall contemporaneously resign all offices in the company.
In the event that B property is sold the parties will do all things and sign all necessary documents to sell the plant, machinery and chattels set out in Table A and upon the completion of the sale and subject to paragraph 16 the parties shall apply the net proceeds of the sale subject to any sale costs as to 50% to the wife and 50% to the husband.
In the event that the net proceeds of the sale referred to in the previous paragraph exceed the amount of $62,600 then the wife will receive 70% of the increase and the husband will receive 30% of the increase but in the event that the net proceeds of the sale referred to in the preceding paragraph is an amount less than $62,600 then the wife’s share of the sale will be reduced by 70% of the shortfall and the husband’s share of the proceeds of sale will be reduced by 30% of the shortfall.
Within 28 days the parties do all things and sign all necessary documents to cause the company to transfer to the husband the Isuzu CR 420 truck and all the fittings as referred to in the valuation report annexed to the affidavit of Mr R sworn 16 July 2007.
Subject to these orders the husband shall retain:
18.1.artwork in his possession;
18.2.the Toyota Landcruiser;
18.3.household effects and furniture;
18.4.his superannuation;
18.5.his bank accounts;
18.6.stock on B property;
18.7.wool on B property;
18.8.plant, machinery and chattels set out in Table A (annexed) which are not referred to in Table B (annexed).
The husband can chose to retain any item in Table B that is not listed in Table C (annexed) by giving the wife written notice within 14 days of these orders of his intention to retain that item and the amount payable by the wife to the husband pursuant to paragraph 2 will be reduced by the total of the value of the items chosen.
Each party will ensure that any item which is in their possession at the date of these orders which is to be retained by the other party is delivered to the other party in the condition that it was in at the date of the inspection by Mr S (subject to reasonable wear and tear) and if any item is not delivered or delivered in the condition referred to, then the party entitled to receive the item has liberty to apply on 14 days notice for an order seeking implementation of the orders or payment to the party entitled to receive the item, an amount equivalent to the value of the item as set out in Table A.
Any dispute about plant, machinery or chattels shall not be a dispute upon which either party can rely for the purposes of not complying with their obligations in relation to paragraphs 2 to 9.
In the event that the husband transfers B property to the wife pursuant to paragraph 5, the wife shall retain all items in Table B subject to the provisions of paragraph 19.
In the event that the wife transfers B property to the husband pursuant to paragraph 9, the husband shall retain all items referred to in Table A.
Subject to these orders the wife shall retain:
24.1.the Holden Jackaroo;
24.2.her superannuation.
Subject to these orders each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
The wife will indemnify the husband in relation to the liability outstanding to her mother.
The husband will indemnify the wife in relation to any liability outstanding to the husband’s parents and in relation to his credit cards.
On or before the payment referred to in order 2, the husband vacate B property and the wife have exclusive occupation of B property.
If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
Apart from the specific leave in relation to plant, machinery and chattels, each party has leave on 14 days notice to apply in respect of the implementation of these orders.

TABLE “A” – Items of plant, machinery and chattels set out in Exhibit O.

1.	Case International tractor	$21,000.00
2.	Lister Wool Press	2,000.00
3.	2001 Honda quad bike	3,500.00
4.	Suzuki Ag bike	800.00
6.	1,100L diesel fuel tank on metal frame	400.00
7.	Stick rake tractor attachment	500.00
8.	Post hole digger with 12” and 18” auger	400.00
9.	Carry all for tractor	300.00
10.	Block splitter for tractor	1,200.00
11.	Hardy 300L spray tank p/by pto and hose reel	4,000.00
12.	1,000kg super spreader	2,000.00
13.	Superior 6’ slasher	1,000.00
14.	Tractor tool box contents	200.00
15.	Six jerry cans	180.00
16.	Hand pump for 44 gallon drums	50.00
17.	5’ x 7’ single axle box trailer	600.00
18.	Silvan 70L spray tank (suite quad bike)	200.00
19.	Silvan 70L spray tank (suite quad bike)	200.00
20.	Portable sheep race	300.00
21.	Portable sheep handler	1,500.00
22.	Portable sheep classing box	1,500.00
23.	Ten portable sheep yard panels	1,000.00
24.	Portable lamb marking cradle	100.00
25.	Four 18mm hoses & fittings, 3 x sprinklers on stands	160.00
26.	Seven wheelie bins	700.00
27.	Anvil on stump	300.00
28.	Vice on stand	50.00
29.	Stihl 038 chainsaw	400.00
30.	Stihl 031 AV Farmboss chainsaw with borer attachment	350.00
31.	Wallaby jack	100.00
32.	Two small rolls of poly pipe	100.00
33.	Three packs of hardwood for shed & yard maintenance	180.00
34.	Qty of steel & pipe	220.00
35.	Qty of bolts & washes etc	100.00
36.	Wheelie bin full of mixed plumbing parts	400.00
37.	Wire spinner	80.00
38.	Post hole shovel	20.00
39.	Three fencing pliers	180.00
40.	Two maddocks	20.00
41.	Two crowbars	30.00
42.	Electric fence energiser in crate with accessories	200.00
43.	Three packs of steel droppers	90.00
44.	Qty of wire	100.00
45.	Qty ear marking pliers, foot shears, animal first aid box & applicators	180.00
46.	Qty sheep & cattle back packs & drenching guns	120.00
47.	800 sheep coats	1,600.00
48.	Three dog beds & chains	30.00
49.	Kelvinator fridge	100.00
50.	Timber classing table	200.00
51.	Pack stencils	10.00
52.	Four wool pack holders	40.00
53.	Shearers lunch table & chairs	40.00
54.	Fire extinguisher	40.00
55.	Sharp carousel microwave	20.00
56.	Lister shearing grinder	500.00
57.	Two 8’ timber benches/tables	200.00
58.	Sunbeam kettle	10.00
59.	Woolpac trolley	20.00
60.	Qty of wool packs	100.00
61.	SIP Supermig 250DP migwelder with helmets and accessories	600.00
62.	Steel welding table	500.00
63.	Hitachi 405mm metal cut-off saw with bench extensions & roller	200.00
64.	Bosch 90mm grinder	40.00
65.	Universal drill press with vice on stand 7 bits	700.00
66.	Abbot & Ashby sharpening grinder on stand	150.00
67.	Homemade 240V sharpening stone	50.00
68.	CIG Transarc easy welder stick welder	180.00
69.	Heavy duty jumper leads	30.00
70.	Battery charger	50.00
71.	Trolley jack	60.00
72.	Endless chain lifting block	50.00
73.	Two large metal saw horses & steel ramps	40.00
74.	Large fire extinguisher	60.00
75.	Oxy set	150.00
76.	3 x angle grinders, 1 x 9” & 2 x 4”	60.00
77.	Topcorn ATF6 dumpy level	150.00
78.	Festo 185mm circular saw	60.00
79.	Hitachi TR-12 router	120.00
80.	Makita N3702 router	120.00
81.	Metabo heavy duty jigsaw	100.00
82.	Three small palm sanders	90.00
83.	Makita belt sander	40.00
84.	Festo orbital sander	40.00
85.	Hot airgun	20.00
86.	Hot glue gun	10.00
87.	3 x handsaws	5.00
88.	Four hand planes	20.00
89.	Panasonic cordless drill	40.00
90.	8 x chisels	5.00
91.	Slide clamps	100.00
92.	Four sash clamps	40.00
93.	Qty of callipers, measures, rules & squares	60.00
94.	Large qty of hand tools incl. screwdrivers, punches	150.00
95.	1200mm level and chalk lines	30.00
96.	Two drill bit sets approx. 45 pcs	250.00
97.	Qty router bits	80.00
98.	Extra Beckum slide saw	300.00
99.	Dewalt radial arm saw	250.00
100.	Antique timber work bench	300.00
101.	Timber shelving unit & contents (screws, spikes etc)	200.00
102.	Promox carving tomahawk	80.00
103.	Tub of gangnails	50.00
104.	800mm spirit level	20.00
106.	Two aluminium plants x 2 x A-frames	180.00
107.	8’ aluminium straight edge	20.00
108.	Qty concreting tools	50.00
109.	Qty tiling tools incl. cutter	50.00
110.	Qty bricklaying tools incl. trowels etc	40.00
111.	Masonry drill bit set	40.00
112.	Two Acro-props	100.00
113.	24’ x 12’ ladder	250.00
114.	Stacked assorted timber incl. blackbutt, kauri etc	500.00
115.	Coleman esky	20.00
116.	Two pruning secateurs	30.00
117.	Pruning shears	15.00
118.	6 burner gas BBQ	50.00
119.	Janome overlocker	100.00
120.	Large qty of second hand books	5.00
121.	Four kauri & redgum tabletops	120.00
122.	Qty of redgum lining boards	50.00
124.	Two bolt cutters	40.00
125.	Seven files & rasps	70.00
126.	Six hammers & mallets	60.00
127.	Three circlip pliers	30.00
128.	Large set spanners	150.00
129.	Three socket sets	90.00
130.	Assorted tools incl. allan keys, screwdriver set, multigrips, adjustable spanners, punches, stillsons, pliers, rivet guns, grease gun, hackshaw	250.00
131.	Three phase table top belt sander	500.00
132.	Timber queen size bed	300.00
133.	Pew style kitchen table	200.00
134.	4 pce leather lounge suite	800.00
135.	DSE 48cm colour TV with remote	100.00
136.	Kitchen utensils, various crockery & cutlery items	200.00
137.	Small bar heaters	10.00
138.	Hospital table	100.00
139.	Card table	20.00
140.	White painted office shelving	10.00
141.	Various second hand furniture, dresser cupboard, 3 x bunk beds	100.00
142.	Kauri timber chest of drawers	120.00
143.	Timber refectory table	40.00
144.	Iron queen size bed	150.00
146.	Cedar occasional table	200.00
147.	Kauri occasional table	150.00
148.	Cement gargoyle	40.00
149.	Wrought iron garden seat	100.00
150.	New office chair	60.00
151.	Whiteboard year planner	30.00
152.	Kelvinator chest freezer	200.00
153.	Two Simpson washing machines	100.00
154.	Large washing machine	80.00
155.	Large fridge/freezer	180.00
156.	4 tier timber shelving unit	50.00
157.	Steele framed timber work bench	100.00
158.	Steel sawhorse	20.00
159.	Timber workbench with vice	60.00
160.	6 x cane chairs, various second hand chairs & stools	80.00
161.	6 tier timber bookcase	100.00
162.	Sideboard with bookshelf	250.00
163.	4 drawer filing cabinet	80.00
164.	Westinghouse fridge/freezer	300.00
165.	Timber chair & blanket box	50.00
166.	Portable calf handler	80.00
167.	Old trailer, baulk gate, wrought iron pieces	20.00
168.	3 x copper firewood containers, cedar firewood box	220.00
169.	20’ shipping container	2,500.00
170.	Small stock crate to suite 4 x 4	150.00
$65,730.00
But total value agreed by the parties		$62,600.00

NOTE: Exhibit “O” has eliminated items 105, 123 and 145.

TABLE “B” - List of plant, machinery & chattels to be taken by the wife if she wishes to exercise the option to retain B property

5.	Case International tractor	$21,000.00
6.	Lister Wool Press	2,000.00
7.	2001 Honda quad bike	3,500.00
8.	Suzuki Ag bike	800.00
105.	1,100L diesel fuel tank on metal frame	400.00
106.	Stick rake tractor attachment	500.00
107.	Post hole digger with 12” and 18” auger	400.00
108.	Carry all for tractor	300.00
109.	Block splitter for tractor	1,200.00
110.	Hardy 300L spray tank p/by pto and hose reel	4,000.00
111.	1,000kg super spreader	2,000.00
112.	Superior 6’ slasher	1,000.00
113.	Tractor tool box contents	200.00
114.	Six jerry cans	180.00
115.	Hand pump for 44 gallon drums	50.00
116.	5’ x 7’ single axle box trailer	600.00
117.	Silvan 70L spray tank (suite quad bike)	200.00
118.	Silvan 70L spray tank (suite quad bike)	200.00
119.	Portable sheep race	300.00
120.	Portable sheep handler	1,500.00
121.	Portable sheep classing box	1,500.00
122.	Ten portable sheep yard panels	1,000.00
123.	Portable lamb marking cradle	100.00
124.	Four 18mm hoses & fittings, 3 x sprinklers on stands	160.00
125.	Seven wheelie bins	700.00
126.	Anvil on stump	300.00
127.	Vice on stand	50.00
128.	Stihl 038 chainsaw	400.00
129.	Stihl 031 AV Farmboss chainsaw with borer attachment	350.00
130.	Wallaby jack	100.00
131.	Two small rolls of poly pipe	100.00
132.	Three packs of hardwood for shed & yard maintenance	180.00
133.	Qty of steel & pipe	220.00
134.	Qty of bolts & washes etc	100.00
135.	Wheelie bin full of mixed plumbing parts	400.00
136.	Wire spinner	80.00
137.	Post hole shovel	20.00
138.	Three fencing pliers	180.00
139.	Two maddocks	20.00
140.	Two crowbars	30.00
141.	Electric fence energiser in crate with accessories	200.00
142.	Three packs of steel droppers	90.00
143.	Qty of wire	100.00
144.	Qty ear marking pliers, foot shears, animal first aid box & applicators	180.00
145.	Qty sheep & cattle back packs & drenching guns	120.00
146.	800 sheep coats	1,600.00
147.	Three dog beds & chains	30.00
148.	Kelvinator fridge	100.00
149.	Timber classing table	200.00
150.	Pack stencils	10.00
151.	Four wool pack holders	40.00
152.	Shearers lunch table & chairs	40.00
153.	Fire extinguisher	40.00
154.	Sharp carousel microwave	20.00
155.	Lister shearing grinder	500.00
156.	Two 8’ timber benches/tables	200.00
157.	Sunbeam kettle	10.00
158.	Woolpac trolley	20.00
159.	Qty of wool packs	100.00
119.	Janome overlocker	100.00
133.	Pew style kitchen table	200.00
138.	Hospital table	100.00
169.	20’ shipping container	2,500.00
$52,820.00

TABLE “C” - Items of plant, machinery and chattels that the wife applied to retain

1.	Case International tractor	$21,000.00
2.	Lister Wool Press	2,000.00
3.	2001 Honda quad bike	3,500.00
6.	1,100L diesel fuel tank on metal frame	400.00
7.	Stick rake tractor attachment	500.00
8.	Post hole digger with 12” and 18” auger	400.00
10.	Block splitter for tractor	1,200.00
13.	Superior 6’ slasher	1,000.00
18.	Silvan 70L spray tank (suite quad bike)	200.00
45.	Qty ear marking pliers, foot shears, animal first aid box & applicators	180.00
50.	Timber classing table	200.00
51.	Pack stencils	10.00
53.	Shearers lunch table & chairs	40.00
55.	Sharp carousel microwave	20.00
56.	Lister shearing grinder	500.00
59.	Woolpac trolley	20.00
119.	Janome overlocker	100.00
133.	Pew style kitchen table	200.00
138.	Hospital table	100.00
$31,570.00

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Roberts & Roberts

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 251 of 2006

Mrs Roberts

Applicant

And

Mr Roberts

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case concerns the alteration of property interests between Mr & Mrs Roberts.
The principle asset of the parties is the farm which the parties jointly own known as B property. Both parties wish to attempt to retain this property.

SHORT HISTORY

The wife was born in October 1955.
The husband was born in April 1957.
The wife asserts that the parties commenced cohabitation in September 1996. The husband asserts that the parties commenced cohabitation on 16 July 1996.
The parties married in November 1997.
The parties separated on 15 September 2005 and a decree absolute of their marriage was pronounced on 13 January 2007.
There are no children of the marriage.

APPLICATIONS

The wife’s application filed on 26 April 2006 seeks the following orders:-
1.That within 28 days of the date of these orders the applicant do pay to the husband the sum of thirty six thousand five hundred dollars ($36,500).
2.That upon payment of the sum referred to in the preceding clause, the husband do all acts and things and sign all documents necessary to transfer to the wife, at the expense of the wife, all of his right title and interest in and to the marital property situated and known as [B property], being all that piece and parcel of land more fully described in folio identifiers […], […] and […].
3.That the husband do all acts and things and sign all documents necessary to resign as a director of the company “[L] Pty Ltd” and to transfer shares held by him to the wife.
4.That as between the parties the wife be declared the sole and beneficial owner of the undermentioned motor vehicles:-
(a)Holden Jackaroo registered number […]
(b)Isuzu Pantec registered number […] and accessories.
5.That as between the parties the husband be declared the sole and beneficial owner of Toyota Landcruiser motor vehicle registered number […].
6.That unless otherwise specified in these Orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker and whose age and working future provides the conditions for payment out of such entitlements, and the chattels in the real property are deemed to be in possession of the wife.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
7.that in the event that the husband or wife refuses or neglects to comply with the provisions of Order 2 and 3, within seven days of being requested to do so, then the Registrar of the Family Court of Australia at Newcastle is hereby appointed, pursuant to Section 106A of the Family Act 1975, to execute all deeds and documents in the name of the husband or wife and do all acts and things necessary to give validity and operation to the said orders.
8.That the court make such other order as is considered appropriate.

Application of the wife at the hearing

Counsel for the wife confirmed that the wife sought orders in accordance with her application filed 26 April 2006.
In respect of order 1, the wife indicated that she could pay the husband about $90,000. She would hope to run and work B property producing wool and cattle. She would like to live there and she says she considers it her home. The paintings were in the husband’s possession and so her application was that the husband keep the paintings. The wife also proposed that he would keep the Isuzu truck.
During final submissions Counsel for the wife indicated that if the wife took the farm she did not wish to take all of the plant and equipment on the farm.
The agreed value of the plant and equipment is $62,600. Exhibit O is part of Annexure B to the affidavit of Mr S sworn 6 September 2007. Mr S was appointed as a single expert to value implements, farm equipment, tools and other items at B property. Mr S’s report totals the items on Exhibit O in the sum of $56,760. The parties agree that Mr S has not correctly added his own list and that the correct total is $62,600.
Annexed to these Reasons is Table A which is the items of plant, machinery and chattels set out in Exhibit O. A check of the total of those items indicates that that total is actually $65,730 but given that the parties have agreed on a figure of $62,600 I will adopt the agreed figure of $62,000 as the total of plant, machinery and chattels.
The wife indicated that she would prepare a separate minute of those items that she wanted from the list which is Exhibit O. No minute of order was provided. However, the wife’s Counsel made it clear in final submissions that the wife only wanted items in Exhibit O marked with the yellow highlighter and in addition she wanted the wool press referred to on the first page of Exhibit O.
The list of items which the wife seeks if she obtains the farm is therefore as follows:-

1.

Case International tractor

$21,000.00

2.

Lister Wool Press

2,000.00

3.

2001 Honda quad bike

3,500.00

6.

1,100L diesel fuel tank on metal frame

400.00

7.

Stick rake tractor attachment

500.00

8.

Post hole digger with 12” and 18” auger

400.00

10.

Block splitter for tractor

1,200.00

13.

Superior 6’ slasher

1,000.00

18.

Silvan 70L spray tank (suite quad bike)

200.00

45.

Qty ear marking pliers, foot shears, animal first aid box & applicators

180.00

50.

Timber classing table

200.00

51.

Pack stencils

10.00

53.

Shearers lunch table & chairs

40.00

55.

Sharp carousel microwave

20.00

56.

Lister shearing grinder

500.00

59.

Woolpac trolley

20.00

119.

Janome overlocker

100.00

133.

Pew style kitchen table

200.00

138.

Hospital table

100.00

$31,570.00

This table has been reproduced at the end of the judgment as Table C for convenient reference.

Application of the husband at the hearing

The orders sought by the husband at the hearing were as follows:-
1.Within 2 months of the date of these orders the husband shall pay to the wife the sum of $338,000 (“the sum”) and do all things and pay all moneys necessary to discharge the mortgage to the ANZ Banking Group Limited secured against the property at [B].
2.If the husband fails to pay the whole of the sum within 2 months he shall pay interest at the rate prescribed by the Family Law Rules 2004 on so much of the sum as remains outstanding commencing at the expiration of 2 months of the date of these orders and continuing until the whole of the sum is paid in full.
3.Upon payment of the sum together with any interest pursuant to order 2, the wife shall do all things and sign all documents necessary to transfer to the husband the whole of her interest in [B property] and shall contemporaneously resign all offices in [L] Pty Limited (“the company”) and shall do all things and sign all documents necessary to transfer her shareholding in the company to the husband or his nominee and shall forthwith return to the husband the Isuzu SCR 420 truck and all fittings as referred to in the valuation report annexed to the affidavit of [Mr R] sworn 16 July 2007 and filed herein.
4.If the husband fails to pay the whole sum and any interest pursuant to order 2 within 4 months of the date of these orders the parties shall do all acts and things and sign all documents necessary to list [B property] for sale by private treaty provided that the husband’s solicitor shall have the carriage of the conveyancing in respect of such sale and further provided that if the parties are unable to agree on the agent with which to list the property then the property shall be listed which such agent as is nominated by the President for the time being of the Real Estate Institute of NSW and further provided that if the parties are unable to agree on the listing price for the property then the listing price shall be determined by the agent with whom the property is listed for sale whether by agreement or pursuant to this order and upon completion of the sale the parties shall apply the proceeds in the following order:-
(a)in payment of estate agent’s commission and expenses, if any;
(b)in payment of legal costs and disbursements in respect of the sale;
(c)in discharge of the mortgage to the ANZ Banking Group;
(d)in payment of the sum together with interest calculated pursuant to order 2 up to the date of completion of the sale to the wife;
(e)upon payment of the balance to the husband.
5.The husband shall from the date of making these orders be solely responsible for and indemnify and keep indemnified the wife in respect of all debts and liabilities of the company, all credit card accounts in the name of the parties or either of them and the loan from his parents.
6.The wife shall from the date of these orders be solely responsible for and indemnify and keep indemnified the husband in respect of any loan from her mother to the parties or either of them.
7.The husband shall forthwith cause the works of art referred to in the report annexed to the affidavit of [Ms D] sworn and filed herein on 28 March 2007 to be listed for sale through such selling agency as the parties agree and failing agreement such agency as is nominated by [Ms D] and upon completion of the sale shall divide the net proceeds of sale equally between the parties.
8.(a) That pursuant to s.90MT(4) of the Family Law Act 1975, that a base amount of seven thousand dollars ($7,000) be allocated to the wife out of the husband’s interest in the MLC Masterkey Business Super police (“MLC”) under membership number 4545114;
(b)That pursuant to s.90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect
(c)That paragraph (a) has effect from the operative time;
(d)That the operative time for the purposes of paragraph (b) of this order is four (4) business days after the service of these orders on the trustee of MLC:
(e)That there be liberty to apply to each party and the trustee of MLC in relation to the implementation of this order affecting the husband’s interest in MLC.
9.Subject to these orders, the wife shall retain all items of personalty, all motor vehicles, all money standing to the credit of her account with any bank, building society, credit union or other financial institution as her sole and absolute property.
10.Subject to these orders, the husband shall retain all items of personalty, all motor vehicles, all money standing to the credit of his account with any bank, building society, credit union or other financial institution, all stock, plant and equipment, all shares in any publicly or privately listed companies and his superannuation entitlements as his sole and absolute property.
The husband had not served any notice on the trustee of the husband’s superannuation fund and abandoned his application for a splitting order.
During final submissions it was agreed that the husband would take the Isuzu truck.

CHRONOLOGY

The wife was born in October 1955.
The husband was born in April 1957.
The wife’s first child was born in 1974.
The wife’s second child was born in 1977.
The wife’s third child was born in 1978.
The husband’s first child was born in 1989.
In March 1991 the husband married his previous wife Ms J.
The wife divorced her first husband in 1991.
The husband’s second child was born in November 1992.
On 4 May 1992 orders were made for alteration of property interests under the Family Law Act between the wife and her first husband whereby the wife retained:-
Property at H valued at   $270,000
Savings   $15,000
Furniture   $20,000
Coin collection worth   $500
In 1992 the wife sold H property for $340,000 and purchased a property at W for $280,000.
In 1992/93 the wife spent $40,000 from the proceeds of the sale of the H property to renovate the W property.
The husband’s third child was born in August 1995.
In 1995 the wife left her employer and received $11,000. The wife won a Hyundai Excel motor vehicle and sold her old Toyota motor vehicle for $10,000 and placed the sale proceeds into her bank account.
In 1996 the wife commenced study for a Diploma in hospitality.
In September 1996 the parties commenced cohabitation in the wife’s residence at W (see discussion later).
On 4 October 1996 the wife commenced working in the husband’s business, C Business.
In April 1997 the wife says that she lent the husband $3,400.
On 15 April 1997 the wife opened the business cheque account at the Commonwealth Bank.
On 14 July 1997 the wife’s mother lent her $10,000.
In August 1997 the wife exchanged contracts to sell the property at W.
On 4 September 1997 the husband and his first wife had orders for alteration of property interests made by consent by Renaud J.
Under these orders the husband received a Westpac Life Policy, $18,000 from the proceeds of sale of a property, the Toyota Landcruiser and personalty and assets in his possession or control. He also got C Business. He indemnified the wife in relation to all debts associated with the business and debts to his parents.
In September 1997 the husband and wife acquired a shelf company known as “[R] Pty Limited” (“the company”).
On 27 September 1997 the wife had a garage sale and received approximately $5,500 for her equipment and furnishings. The husband received approximately $2,000 for his furniture.
In October 1997 the company name changed to P Company.
In November 1997 the parties married.
In November 1997 the husband wound up his C Business.
On 25 November 1997 the wife settled the sale of the W property and received net $448,883.54.
On 26 November 1997 P Company purchased the property at K. The purchase price was $240,000 and the proceeds of sale of the W property were used to complete the purchase.
In January 1998 the parties moved to K.
Between May 1998 and April 1999 the husband worked in Sydney. The wife worked in the same location between October 1998 and March 1999.
In May 1998 (according to the husband) or on 3 August 1999 (according to the wife – the date was not clarified in evidence and is of no moment) the husband received from AMP the amount of $3,945.70.
The husband says that from April 1999 he undertook labouring work until December 1999. The wife says the parties worked in Sydney until August 1999. The wife says between August 1999 and October 1999 the parties worked in the K area, doing home renovations and some work for the owners of vineyards (the wife working alongside the husband as his labourer).
In October 1999 the wife commenced work as a waitress in K.
In February 2000 the husband sustained a badly broken finger.
In April 2000 the husband and wife borrowed $26,424 from the husband’s parents in relation to P Company.
In May 2000 P company commenced the business A company.
In July 2000 the husband sold NRMA shares.
The parties separated in July 2000.
In August 2000 the parties reconciled.
On 25 August 2000 the wife sold her coin collection and received $500 which was paid into P Company’s account.
In January 2001 the parties sold personalty and received $8,000.
In December 2002 P Company sold the property at K for $600,000. The amount of $26,723 was repaid to the husband’s parents. Furniture and machinery were sold for $52,664.
On 10 December 2002 the husband and wife settled the purchase of the property at B in their joint names for $550,000 using the proceeds of sale of the K property and borrowing $159,000 from the ANZ Banking Group Ltd.
On 8 April 2003 the company’s name changed to “[L] Pty Limited”. The husband and wife remained directors and shareholders of the renamed company.
It is conceded by the husband that on 27 August 2003 the wife borrowed $13,000 from her mother.
It is conceded by the wife that in July 2005 the husband and wife borrowed $14,000 from the husband’s parents.
On 15 September 2005 the parties separated.
On 16 September 2005 the husband was served with an apprehended domestic violence summons issued by the police seeking orders for the protection of the wife.
On 29 September 2005 an interim domestic violence order was made in the wife’s favour.
On 28 March 2006 the application for final domestic violence orders was dismissed.
On 30 March 2006 the wife vacated B property and the husband took up occupation of the property.
On 11 May 2006 I made orders that are otherwise referred to elsewhere in these reasons.

DOCUMENTS READ

The parties relied on the following documents:-
75.1.Affidavit of the wife sworn 31 January 2007
75.2.Affidavit of the wife’s mother sworn 1 February 2007
75.3.Financial statement of the wife sworn 4 September 2007
75.4.Affidavit of the husband sworn 23 January 2007
75.5.Financial statement of the husband sworn 23 January 2007
75.6.Affidavit of Ms D sworn 28 March 2007
75.7.Affidavit of Mr T sworn 28 March 2007
75.8.Affidavit of the husband’s father sworn 16 April 2007
75.9.Affidavit of Mr C sworn 14 June 2007
75.10.Affidavit of Mr R sworn 16 July 2007
75.11.Affidavit of Mr S sworn 6 September 2007

ISSUES

The main issue in this case is what adjustment should be made between the parties in respect of contributions that they have both made during their relationship and since separation.
Central to this is:-
77.1.What weight should be allocated to the wife by way of her contribution of the W property; and
77.2.What did the husband have at the commencement of cohabitation.
There are issues about the amounts outstanding to the husband’s parents and the wife’s mother.
There is an issue as to what adjustment should be made for s.79(4)(d) – (g) factors.
Although flagged as an issue, the husband in final submissions did not submit that the wife had wasted the A Company business since separation by not maintaining it adequately.
The wife says she does not accept that the value of plant and equipment comprises all of the plant and equipment of the company. She alleges that the husband has not made available for inspection all of the plant and equipment to the valuer. The wife has made a request for particulars to the valuer in respect of the husband’s disclosure of the assets for the purposes of the valuation. The valuer has not complied with such requests for particulars. However, in the end the wife did not seriously press an argument based upon the husband’s lack of full and frank disclosure.

INTERIM ORDERS

On 11 May 2006 I made the following interim orders:-
1.That both the applicant and respondent be restrained from assaulting, molesting, harassing, threatening or in any way interfering with the other.
2.That in the event that within 28 days the wife gives written notice to the husband of her intention to resume normal residence in the home situated on the property [at B] (hereinafter referred to as “the home”), then the husband shall through his lawyers deliver to the wife through her lawyers as soon as is practicable a key to allow the wife access to the home and as soon as is practicable copies of all other keys to all other locks on the property.
3.That in the event that the wife chooses not to re-enter the home as her normal residence then the wife shall have the right to inspect the home and the [B] property once every month if she so chooses upon giving 14 days notice as to the date and time in which she intends to attend for the purposes of carrying out that inspection.
4.That the respondent be restrained from removing or causing any other person to remove the Isuzu truck, registration number […], from the possession of the applicant or the applicant’s agent or nominee.
5.That the respondent be restrained from telephoning, writing to or sending emails to or in any way communicating with any client, manufacturer or supplier of products, being clients or products used in connection with the former business of the parties known as [A Company].
6.That subject to any ordinary trading allowed by the orders both the applicant and respondent be restrained from selling removing or otherwise disposing of or encumbering without the prior consenting writing of the other or further order of the Court:
a.The home;
b.Their respective shareholding in [L] Pty Ltd (“the company”);
c.The furniture and contents of the home;
d.Any assets removed by the husband from the home after 15 September 2005;
e.Any monies or deposit with ANZ Bank account […];
f.Any item of plant or equipment or other asset of the company.
7.That the applicant, herself or through her nominee, use her best endeavours to procure for the business operated under the trading name[A Company], clientele for that business and use her best endeavours to operate the business known as [A Company] as profitably as possible.
8.That the applicant and respondent do all necessary acts and things and sign all necessary documents to ensure that all creditors of the company and of the business [A Company] are paid in a timely manner.
9.That the applicant be restrained from in any way interfering with the respondent’s day to day operation and management of the farming business on the [B] property.
10.That the respondent through his lawyers provide to the wife through her lawyers on a monthly basis records of any income received from the farming business on [B property] and any expenses incurred in the operation of the farm.
11.That the applicant each month provide through her lawyers to the respondent’s lawyers a copy of a summary of the income received from the operation of [A Company] and expenses incurred in the running of that operation.
12.That as soon as is practicable after 30 June 2006, both parties provide all written information and accounting records that are in their possession in relation to the trading of the company [L] Pty Ltd for the purposes of having a tax agent agreed upon between the parties and failing agreement, [G and Associates], prepare a set of financial statements for the financial year ended 30 June 2006.
13.That within 14 days the respondent provide to the applicant a schedule detailing all items of personality, tools, farming plant and equipment and other items removed by the respondent from the home subsequent to 15 September 2005 and in so doing disclose the whereabouts of that property.
14.That the applicant forthwith provide to the respondent any documents and items that she has in her possession or control that are within the following descriptions:
a.Records of wool produced and sold by the company and the previous proprietors of the property;
b.Copies of company insurance policies including workers compensation policies;
c.All drenching records showing which stock were drenched when and what chemicals were used;
d.Receipts and invoices showing GST paid by the company during the last quarter;
e.Documents showing the company’s registration number which entitles it to purchase diesel for off road at concessional rates;
f.Receipt book used to record payments to farm contractors;
g.The telephone handset referred to in the letter from the solicitors for the husband dated 6 April 2006;
h.The NILS tags, stock movement book and personal identification code relating to movement of stock from the property including for sale.

CONTRAVENTION APPLICATIONS

Between January 2007 and May 2007 there were a number of court events relating to assertions by the wife that the husband had contravened various orders made by me on 11 May 2006.
On 18 January 2007 the wife filed an application for contempt against the husband. That was heard on 23 February 2007 by Mullane J and he made an order dismissing the wife’s application. The wife appealed this order on 23 March 2007.
On 4 April 2007 the husband pleaded guilty to four alleged contraventions before Judicial Registrar Loughnan and was placed on a good behaviour bond in the sum of $50,000 for a period of nine months. On review, Ryan J on 21 May 2007 varied the sentence to a period of seven months and two weeks and reduced the bond to $5,000. On 21 May 2007 the wife undertook to withdraw her appeal from the decision in respect of the application for contempt.

CREDIT

Husband

The husband’s credit was significantly damaged by the evidence he gave concerning the financial statement which he swore on 10 April 1997 in proceedings with his former wife Ms J. That financial statement asserts that at the time the document was sworn there was an amount of $116,500 outstanding to his parents and other family members. The husband’s evidence is that shortly after property orders were made on 4 September 1997, each of his family members individually forgave the outstanding debts.
This is to be contrasted with evidence from his father that any monies owing by his son to his parents were forgiven shortly after the separation from Ms J.
The husband was asked questions about his financial statement. The answers he gave to a number of those questions was less than satisfactory. I find that the husband presented to the Family Court in the previous proceedings against his former wife, Ms J, an untruthful position in relation to his then financial circumstances.
Further, as Annexure A to the wife’s affidavit sworn 31 January 2007 (also Exhibit H) and the evidence about that document shows, the husband was prepared to have his parents sign a document that purported to verify that the husband still owed his parents a debt of $72,000 and that that debt was being repaid at $150 per month at a time after the settlement of property proceedings with Ms J. On any view of the evidence, that document was false. It was created by the husband for the purposes of misleading the Child Support Agency. Whilst it is true that the wife assisted the husband in making an application to the Child Support Agency, it was not put to her during cross examination that she had participated in the creation of this letter or in fact knew that the contents of it were false.

Wife

Two financial statements of the wife sworn in these proceedings assert that her income is “nil”. It is clear that the wife had some income during the financial year in which both those financial year statements were sworn. The wife’s explanation was that she had not earned income in the week that she swore the statement. That explanation is less than satisfactory and in my view reflects on her credit. The deceptions by the husband however are far more serious.

Conclusion

Overall I was more impressed with the way the wife gave her evidence than the way the husband gave his evidence.
As it turns out most of the important issues of this case can be determined by reference to other objective evidence. Where, however, there is a dispute between the husband and wife that cannot be decided by reference to other evidence or reasonably available inferences then I prefer the evidence of the wife over the evidence of the husband.

THE APPROACH TAKEN

In this matter my task is to:
93.1.Identify and value the property, assets, financial resources and liabilities of the parties;
93.2.Identify relevant contributions and assess them;
93.3.Consider relevant matters referred to in s.79(4)(d) – (g) Family Law Act;
93.4.Ensure my order adjusting the property assets and liabilities of the parties is just and equitable.
Both parties submitted that I should adopt a global approach in endeavouring to arrive at a just and equitable division of their property. I agree that it is appropriate to deal with their assets on a global basis (see Norbis & Norbis (1986) FLC 91-712; Lenehan & Lenehan (1987) FLC 91-814; Zyk & Zyk (1995) FLC 92-644).

BALANCE SHEET

At the commencement of the trial there were quite a number of disputed items on the balance sheet. Many of those disagreements were distilled during the trial and compromised figures were agreed in relation to most items.
The company L Pty Ltd is the alter ego of the parties. The parties agreed to value the company based on the value of the individual assets held in the company.
The gross wool cheques for 2007 are expected to be in the sum of $50,000. There is an outstanding amount which has been advanced from Australian Wool and Pastoral Agency of $6,142. There are also brokerage fees to pay in the order of 10% of the gross cheque. The husband indicated that he would accept a figure for the wool of $44,000 and he would be responsible for shearing and selling the balance of the wool in the weeks after the hearing had concluded. The wife accepted the figure of $44,000 and that the husband keep the proceeds from this years wool clip.
Originally the wife asserted a loan to Mr V in the sum of $20,200. That loan was removed from the balance sheet on the basis that it had been borrowed by the wife for her own post separation expenses.
The values to be attributed to those assets and liabilities contained in the pool of assets are set out in the table below. The two remaining areas of contention in the balance sheet were the liability to the husband’s parents and the liability to the wife’s mother. A determination has been made in relation to these two items for the reasons set out after the table.

Assets
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	J	Real estate at B property	$700,000	$700,000	Agreed	$700,000
2	H	Artwork in possession of husband	$26,500	$26,500	Agreed	$26,500
3	W	Holden Jackaroo	$2,000	$2,000	Agreed	$2,000
4	H	Toyota Landcruiser	$5,000	$5,000	Agreed	$5,000
5	H	Household effects and furniture	$7,000	$7,000	Agreed	$7,000
6	W	Superannuation	$6,000	$6,000	Agreed	$6,000
7	H	Superannuation	$10,000	$10,000	Agreed	$10,000
8	C	Bank account	$2,500	$2,500	Agreed	$2,500
9	C	Stock	$54,000	$54,000	Agreed	$54,000
10	C	Wool	$44,000	$44,000	Agreed	$44,000
11	C	Isuzu truck and contents	$30,000	$30,000	Agreed	$30,000
12	C	Plant and equipment	$62,600	$62,600	Agreed	$62,600
13	H	Bank account (not disputed)	$13,000	$13,000	Agreed	$13,000
14	W	Contents	$2,000	$2,000	Agreed	$2,000
Total assets			$964,600
Liabilities
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
15	H	Mortgage on B property	$151,300	$151,300	Agreed	$151,300
16	J	Liability to husband's parents	$50,462	$14,000	Determined	$14,000
17	J	Liability to the wife's mother	$9,517	$36,642	Determined	$9,517
18	H	Husband's credit cards	$25,600	$25,600	Agreed	$25,600
Total liabilities			$200,417
Total net assets			$764,183

Liability to the husband’s parents (Item 16)

The husband submits that the debt to the husband’s parents is $50,462. That figure is the total of the figures set out in Exhibit 7. Exhibit 7 summarises the loans from the husband’s parents to L Pty Ltd in the sum of $38,450 and the loans directly to the husband in the sum of $12,011.62. It is accepted that Exhibit 7 accurately reflects entries in the records in the Bendigo Bank account in the husband’s name. This is an account into which the husband’s parents have made deposits.
The first entry on Exhibit 7 is an amount of $14,000 which is the only amount conceded by the wife.
Cheques that the husband’s parents have paid for the husband’s legal fees are not included in the schedule which is Exhibit 7 nor are the husband’s legal fees added back in the balance sheet.
The husband’s father confirmed that there was an account in the name of he and his wife with Bendigo Bank. That account had been opened about a week after the husband had left the wife in September 2005. The husband had permission to draw upon that account. He did not know the current balance of the account. Monies put into that account by the husband are “on loan”. There is an agreement in relation to repayment but there is no stipulated date for repayment. The husband’s father said that he might in the future consider suing his son if the money is not ultimately repaid. I do not accept that evidence given the liberal and flexible arrangements that have in the past existed between the husband and his father in respect of advances made by the husband’s parents
The wife’s position in relation to the Bendigo Bank account is that to some degree, at least in recent times, it has been used as a trading account by the husband. For example, a repayment referred to in evidence of $14,000 on 3 August 2007 was a payment that the husband’s father thought came from his son. As at the date of hearing there was $1,200 in the Bendigo Bank account. That means that although the husband put $14,000 into the Bendigo Bank account on 3 August 2007 (by way of “repayment”), he had withdrawn most of it again. The husband has unhindered access to the use of the Bendigo Bank account.
Counsel for the husband conceded that if I had assumed that $14,000 was paid back into the Bendigo Bank account by the husband the amount owing to the husband’s parents would come down to $36,462 ($50,452 - $14,000).
There was also a question about another amount of $4,000 which had been paid in. The husband’s father was uncertain as to whether or not that money had come from him or had come from his son.
Counsel for the wife argues that it would be unsafe to add back any amount other than the $14,000 that has been conceded by the wife as owing to the husband’s parents on the basis that the husband could expect that the amount will never need to be repaid.
The force of that submission lies in the fact that:-
108.1.There is a history in the husband’s previous property proceedings with his former wife Ms J of debts being claimed by the husband as owing to his parents which have subsequently been forgiven.
108.2.The husband freely operates the Bendigo Bank account as if it is his own account.
In relation to the first of those matters, Counsel for the husband says that it would be unwise for the Court to rely upon what happened between the husband and his parents in the past as a guide to what might happen in the future. It was submitted by the husband that in the previous property settlement, had the debt from the husband’s parents been called upon the husband would be bankrupt. That is not so here. The husband will be solvent at the end of these property proceedings. The husband’s parents could expect repayment after these proceedings whereas previously they could not.
That submission is not entirely accurate. The analysis that I later do in these reasons of the husband’s sworn financial statement in April 1997 indicates that his net position, after disregarding any debt to his parents or relatives, was approximately $43,000. Whilst it is consequently true to say that if the whole of the debt was called upon, the husband would be insolvent, it is also true to say that some of the debt could have been repaid (for example from the $18,000 received from Ms J) without that being the effect.
There was an inconsistency between the husband’s evidence and the evidence of his father in relation to the circumstances in which the previous debt owed by the husband to his parents was forgiven following the breakdown of the husband’s first marriage with Ms J. The husband’s evidence is that it was forgiven within a week or two after the property settlement. The husband’s father’s evidence is that the forgiving of that loan happened just after the husband and his first wife separated. That is when the husband’s father gave evidence he told his son about the decision.
The husband’s father was asked questions about a letter he had written for his son to use in dealings with the Child Support Agency which said that there was still $72,000 outstanding which was being paid off at $150 per week (Exhibit H). The letter was signed by the husband’s father at a date much later than when he said that he had told his son about a decision to forgive the debt.
The cross examination was less than adequate given that the husband’s father could not be shown the document. The husband’s father’s response was that it was about the time that he had a stroke and his memory about that time was poor but he had no recollection of telling anybody that his son still owed him the money.
The likely explanation is that the husband had his father write a letter saying money was still owed that was not in fact owed. As well as reflecting poorly on the credit of the husband and his father, the letter adds to the overall picture of the fluid arrangement that exists between the husband and his parents in relation to monies owed or not owed from time to time.
I conclude that given the state of the evidence it would be unsafe to include on the balance sheet a debt owing by the husband to his parents of more than that which is conceded by the wife for the following reasons:-
115.1.I have no confidence that the analysis of the Bendigo Bank account is in fact an analysis of monies drawn from funds, the sole source of which are the husband’s parents;
115.2.I have no confidence that whatever monies, if any, are owed to the husband’s parents in excess of $14,000 are monies that the husband will ever have to repay to his parents.
Accordingly, the amount that I place in the balance sheet for item 16 will be the sum of $14,000.

Liability to the wife’s mother (item 18)

Exhibit C is a spread sheet which was admitted as an aide memoire. It was created by the wife after separation to detail the advances that she had received from her mother and the repayments that had been made to her mother. There are seven advances and nineteen repayments listed on that document.
I indicated that unless there was evidence in relation to the advances on that document I would not be taking Exhibit C as evidence of those advances.
Counsel for the wife made it clear in submissions that the wife’s mother was not asserting any claim for interest on monies borrowed from her her.
Counsel for the wife calculates the outstanding liability to the wife’s mother in the sum of $36,664 based on the information in the affidavit of the wife’s mother filed 1 February 2007. That calculation is as follows:-
Paragraph 5   $10,000
Paragraph 8   $9,500
Paragraph 11   $9,842
Paragraph 13 and 14                    $13,000
Paragraph 12  ($5,700)
$36,642

Paragraphs 5 and 8

Counsel for the husband submitted that the first debt is now statute barred in accordance with the terms of the original agreement that is annexed to the affidavit of the wife’s mother. That seems to be legally accurate.
Counsel for the husband submitted that an inference should be drawn that the $19,500 was repaid at the time of the K property sale. A debt to the husband’s parents was repaid at that time. Other outstanding liabilities, much as the loan relating to the Isuzu truck, were repaid at that time. The parties were moving away from the area and going to B property. It is submitted that it would be a reasonable inference to draw that the $19,500 was paid from the sale of the proceeds of K property.
Neither party provided a full explanation as to what happened to the monies received from the K property sale.
Counsel for the husband refers to the final company accounts which show that the liability to the wife’s mother has been removed from the company balance sheet. I was asked not to accept the wife’s evidence that that was done by way of improving the balance sheet for the purposes of bank applications.
The balance sheet for L Pty Ltd for the year ending June 2003 (Exhibit 2) shows the directors’ loan accounts in the sum of $542,848 had been wiped out as well. Counsel for the husband said that what he inferred had happened was that when K property, which was in the name of the company, had been sold, the company repaid directors’ loan accounts with the proceeds of the sale. The parties then brought B property in their own name.
Counsel for the husband also submitted that the claim by the wife that $19,500 had been transferred into the equity in the company accounts is not apparent from the face of the financial records of the company. He made the point that the accountant who drew these accounts was still the company accountant but the wife had not called the accountant to say what had happened at that time.
It is clear that the wife had the control of the preparation of the company accounts. She has chosen, with the company accountant, to reconstruct them in a way that eliminated loan accounts to her mother. No alternate set of accounts have been produced. I infer these are the accounts sent to the Australian Tax office. There is an argument that without correcting that error with the ATO she is not able to come to this Court and assert a different position (see Nelson & Nelson (1995) 184 CLR 538) but that argument was not developed by Counsel for the husband.
For the other reasons advanced by Counsel for the husband, I accept the submission that it would be unsafe to include the debts asserted in paragraphs 5 and 8 of the wife’s mother’s affidavit.

Paragraph 11

The wife’s mother gave evidence that during 2001 and 2002 there was agreement between her and the parties that the parties would make some furniture for her and do some renovation work at her home and she would pay them commercial rates for that work. She paid the parties $25,000 in total. She claims that they had not completed the work and that $9,842 was owing to her because the work was not completed.
Counsel for the husband says there are no documents tendered from P Company that indicate that the original agreement included work in the wife’s mother’s bathroom, but you would not necessarily expect full documentation given the association of the parties.
The wife’s mother’s evidence in relation to the uncompleted work was that the husband had failed to finish off the sunroom by not completing the architraves/trimming and not painting it.
She also claimed that work in relation to a bathroom had not been done, including retiling and the installation of safety bars. She said that she thought there was a document in existence that evidenced a credit given to her by her daughter of $9,842. Counsel for the husband called for the document acknowledging the $9,842 owing to the wife’s mother. It was not produced during the hearing. The wife’s mother’s evidence is that the trimming of the sunroom was not done but her granddaughter completed the painting for her. She has never had the money to complete the work in relation to the bathroom. The husband’s evidence is that he conceded the painting of the sunroom wasn’t done but said that his wife indicated to him that she would be attending to that. He had no memory of any missing architraves/trimming and said that there was never any agreement that any work would be done in relation to the wife’s mother’s bathroom.
The other difficulty with the claim in paragraph 11 for the credit that the wife’s mother claims for work that she says was not completed is that the debt referred to of $9842 in paragraph 11 of the wife’s mother’s affidavit does not appear on the balance sheet of the company.
Given the state of that evidence I am unable on the balance of probabilities to accept that there is a debt owing to the wife’s mother in the sum of $9,842 in respect of work not completed at the wife’s mother’s home.

Paragraph 12

Counsel for the wife submits that an analysis of the company balance sheet for the financial year ended 30 June 2002 indicates that the then debt owing to the wife’s mother was $17,282.83. The submission is that based on that information an assumption can be made that as at June 2002 there had been some repayment in relation to monies advanced in July 1997 and in July 2000. It would seem that the credit is $2,217 ($19,500 - $17,283). That credit however would be read in light of the concession by the wife’s mother in paragraph 12 of her affidavit of $5,700 being the total amount that she had received by way of repayment.
Counsel for the husband suggested that I would accept the $13,000 that is claimed as a debt in paragraph 13 of the wife’s mother’s affidavit but that I would reduce that amount by an amount of $3,483 which was calculated as follows:-
Amounts set out in paragraphs 5 and 8   $19,500
Less amount on the balance sheet of the company as at 30.6.02            $17,283
$2,217
Less amount referred to at paragraph 12 of the wife’s mother’s affidavit    $5,700
$3,483
I accept that is an appropriate calculation. I therefore accept that the debt to the wife’s mother is in the sum of $9,517 ($13,000 - $3,483).

CONTRIBUTIONS

The wife says the contribution adjustment should be 80/20 in her favour. The husband says it should be 53/47 in the wife’s favour.

Date of cohabitation

The parties do not agree when it was that they commenced to live together. They do agree that they met at a social function on 12 July 1996. That was a Friday night. The husband was adamant that he moved in and lived with the wife in a permanent defacto relationship the following Tuesday (16 July 1996). The wife says that it wasn’t until September that the husband moved in permanently. There is no objective evidence that would assist me in resolving this issue. The wife’s evidence was not challenged in cross examination. The husband’s evidence was challenged. It was put to the husband that although he might have attended the wife’s premises on occasions between July and September he was not permanently living there and that he still had personal effects at this former home. The husband disagreed with those propositions. In the end little turns on whether or not the parties lived together in this period. During this period the wife had, what was referred to in evidence, as “two Asian house guests”.
The husband asserted that when he first moved to the wife’s property at W the two Asian boarders were living there.
The husband gave evidence that it was not until after they had left that he started to be regularly involved in the preparation of evening meals.
Based on my findings of credit I prefer the wife’s evidence over the husband’s evidence on this issue. Also I find it inherently more likely that a permanent defacto relationship did not develop after the parties knowing one another for a weekend (although I understand there may be such a thing as love at first sight it is not something that usually leads to an instant permanent defacto relationship).

Initial contributions

Legal principles

The history of jurisprudence on legal contributions is well known: see Bremner (1995) FLC 92-560; Pierce (1999) FLC 92-844.
The Full Court in Williams [2007] FamCA 313 said:-
“We think that there is a force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties.
Thus, where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significant in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realized rather than simply pay attention to its initial value at the time of commencement of cohabitation.
But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”

Wife

The wife contributed at the commencement of the cohabitation the following assets:-
145.1.Property at W – unencumbered. What happened to the proceeds of W property is discussed in more detail below.
145.2.Approximately $36,000 in savings.
145.3.Furniture and furnishings.
145.4.Hyundai motor vehicle acquired in 1995.

Husband

At paragraph 9 of his affidavit sworn 23 January 2007 the husband sets out what he says were his assets and financial resources at the commencement of the cohabitation. They were:-
146.1.Savings which the husband asserts in his affidavit were $14,000. He relies on a bank statement (being Annexure A). That bank statement has a opening and closing balance of only amounts slightly over $3,000.
146.2.Westpac Universal Life $4,000. The husband says he subsequently received a payment of $4,860 in respect of that policy;
146.3.Tools and machinery $20,000;
146.4.Toyota Landcruiser $15,000;
146.5.Runabout boat and outboard motor $1,000;
146.6.Personal goods $10,000;
146.7.Furniture and artwork $10,000;
146.8.Superannuation policy with AMP $3,638.
In addition in July 1997 the husband received by way of finalisation of property settlement an amount of $18,000 from his former wife Ms J.
The information supplied by the husband in his 2007 affidavit needs to be contrasted with what is in Exhibit J. This contains a financial statement sworn by the husband on 10 April 1997 for the purposes of supporting his claim for alteration of property interests against his former wife Ms J. The husband asserts in that sworn statement that:-
148.1.His average weekly income is $220 and that amount is drawn against C Business;
148.2.His total expenses are $414. He at the time of swearing the financial statement is living with the wife who he asserts on his oath has an income at that time of $350 per week. The husband says he contributes to household expenses but that the wife meets all expenses relating to accommodation, utilities and insurance of the home. The husband’s expenses include $80 for food and household supplies; $26 for tax; $40 for board/rent; $30 for entertainment and outings; $100 for loan repayments; $10 for clothing and footwear; $100 for child support; $20 for travel and holidays and gifts.
The husband states that his total property is $111,620 and that his total liabilities were $218,588 with a contingent liability of $12,000. He notes his interest in superannuation with AMP as $3,638.
A closer analysis of the assets disclose that the bulk of the assets are made up by a one half interest in a property at N in the sum of $85,000. It appears therefore the value of the N property was $170,000. The N property was sold with Ms J getting all but $18,000 of the net proceeds of the sale as a result of the orders made finalising alteration of property interests between Ms J and the husband. The other assets listed by the husband are as follows:-
150.1.C Business written down value of its assets – 50% - $7,120. The husband got that asset in full, namely $14,240;
150.2.The Toyota Landcruiser valued by the husband in his financial statement at $14,000;
150.3.Furniture, furnishings and household effects estimated value by the husband at $500;
150.4.Personal property, including jewellery, a boat and artwork at $5,000.
As mentioned, the husband also received $18,000 from Ms J when he transferred the home to her.
In summary, therefore, based on the husband’s financial statement sworn in April 1997 he had the following assets:-
C Business   $14,240
Toyota Landcruiser  14,000
Furniture, furnishings and household effects  500
Personal property, including boat and artwork  5,000
Amount received from Ms J  18,000
$51,740
The husband’s debts total $218,585. That total included an amount of $93,000 owed to Westpac on the N property. Under the orders when N property was sold, that liability was discharged.
The husband’s other liabilities were:
Unpaid tax   $1,333
Bank card  600
Visa  5,094
Loans  116,558
Legal expenses  2,000
$125,585
The $116,558 was substantially (but not solely) money lent from the husband’s relatives, particularly the husband’s parents. All of the amounts lent predate the cohabitation. They are for specific amounts commencing in December 1989 through to the middle of 1996. If these debts had been fully called upon the husband clearly was in an insolvent state.
I have already referred to the inconsistency between the husband’s evidence and the husband’s father’s evidence in relation to when it was that the debt to the husband’s parents was forgiven (the husband’s father saying it was shortly after separation; the husband saying it was shortly after property settlement). There does not seem any doubt however that the debt was in fact forgiven.
I have previously commented that it seems clear that the letter that the husband had his father write on his behalf for the purposes of the husband presenting it to the Child Support Agency (indicating there was still an outstanding debt of $72,000) did not at that time, and does not still today, accurately represent any money that was actually outstanding by the husband to his parents at that time.
In summary, the liabilities that existed that the husband actually had to pay as at April 1997 were in the sum of approximately $9,000. That is the liabilities claimed by the husband once the debt to Westpac and his parents and other relatives are excluded.
An analysis of the husband’s April 1997 financial statement would therefore lead one to conclude that he had about $42,740 worth of assets as at April 1997 ($51,740 - $9,000).
I find that that is likely to be a more accurate representation of the husband’s net worth than what he has set out in paragraphs 9 and 11 of his affidavit sworn 23 January 2007.

Contributions to W property

The husband at paragraph 12 of his affidavit set out contributions he made to the W property. The wife challenged a number of these alleged contributions.
The husband in paragraph 12(d) said he carried out drainage work at the W property including the laying of ag, pipe and rubble drains. The wife says that drainage work for the W property was completed in 1994, Exhibit A is photographs she says she took in that year. The photographs show fresh bulldozer work being carried out for drainage. The wife says it was done by a Mr Y. It may be that the two pieces of evidence are not mutually exclusive. The work being carried out by the bulldozer seemed to be major drainage work whereas the husband is talking about the laying of ag pipe and rubble drains and paying a trenching contractor $1,000. The wife was not challenged in cross examination of her assertion that the husband did not carry out drainage works at W property. I find that it is unlikely that the husband did any significant draining works at W property without the wife knowing about it. I accept therefore that if in fact the husband put in an agricultural drain it was not an improvement to which I should attach any great weight.
In paragraph 12(e) the husband asserted that he undertook tiling work in the kitchen. The wife denied this. She said that prior to the husband commencing cohabitation with her at the W property she had renovated various parts of the house. The renovations included the installation of a new kitchen which included all tiling. For the same reason the wife denied the husband’s claim in paragraph 12(f) of his affidavit that he installed a premium quality range hood at W property. She also for the same reason denied that he paid for tiling work in the laundry and the toilet (paragraph 12(g) of the husband’s affidavit). Again the wife said that the laundry had been removed as one of the first jobs during the renovations of W property that took place prior to the husband coming to live there.
I accept the wife’s evidence in relation to the issues that arise between the parties about the husband’s evidence in subparagraphs 12(d) – (g) of his affidavit.

The use of the proceeds of the sale of W property

The wife’s possession of W property at cohabitation is a very weighty contribution by her. At paragraph 43 of her affidavit the wife says that she received on 25 November 1997 from the sale of the W property a net amount of $448,883.54. Annexures I and J to her affidavit confirm that amount.
In paragraphs 56 and 57 of her affidavit the wife sought to set out how the proceeds of the sale of W property were disbursed.
The amounts referred to in Annexure M, paragraphs 57.1 and 57.2 of the wife’s affidavit add to the net proceeds of the sale of the W property ($224,953 + $87,872 + $36,058 = $448,883).

The purchase of K property

The settlement of the purchase of the K property was simultaneous with the settlement of the sale of the W property. The wife at paragraph 56 of her affidavit says the sum of $240,000 went towards the purchase from the sale. The wife relies upon Annexure L and M to support that assertion. Those documents show however that the amount required on 25 November 1997 to complete the purchase of the K property was in the sum of $224,953.15.
As mentioned elsewhere, the husband’s parents assisted with a loan for the deposit on the K property and that loan was repaid by the wife from the balance of the sale of the W property.
The reason for the difference between that amount and the purchase price of $240,000 was the prepayment of the 10% deposit in the amount of $24,000. That brought the amount required down to $216,000. In addition to that amount, rate adjustments and stamp duty and legal costs increased the amount to $224,953.
As mentioned elsewhere, the husband’s parents assisted with a loan for the deposit on K property and that loan was repaid by the wife from the balance of the sale of W property.

What happened to the balance of the proceeds of the sale of the W property? (Exhibits K & L)

At paragraph 56.1 of her affidavit the wife says that on 27 November 1997 an amount of $187,872.04 was paid into the Commonwealth Bank company account (account number ending 233). At paragraph 57.2 she said a further $36,058.34 was deposited into another Commonwealth company account (account number ending 204) on 27 November 1997.
Counsel for the wife indicated that he believed that the assertions made in paragraph 57.3 and 57.4 of the wife’s affidavit may have been a double counting by her of amounts that were otherwise paid out of the two Commonwealth Bank company accounts and I accept that is so.
Exhibit K is a cash management call account (account …233). An amount of $187,872.04 was deposited into that account from the proceeds of the sale of the W property on 27 November 1997.

Her son had borrowed money to fund repairs of the truck and to purchase materials. The wife considered that her son had taken a risk when making that borrowing. The wife relied upon what her son told her in relation to the use of the truck. It was put to her that she had no knowledge as to whether or not her son was using the truck without informing her. Her reply was it took two to run the truck but she accepted that she was relying on her son to volunteer information about the use of the truck. The wife conceded that since October 2005 no monies had been placed into the L Pty Ltd account arising from the use of the truck.
The wife said that she had attempted to obtain business for the truck. She put a regular advertisement in a farming industry magazine. She had attempted direct approaches when she was aware that new storage units were being built (she mentioned one at Port Macquarie). She attempted to quote on jobs for piggeries and for chicken sheds. There had however not been a great deal of profit generated from the use of the truck. There had not been enough jobs to cover the average costs of running the truck including averaging out the costs of repairs.
I accept that the wife is giving accurate information from her point of view as to the income that she has derived from the truck.

Loan from husband’s parents

The husband’s father swore an affidavit on 16 April 2007 and gave oral evidence by telephone from overseas. He confirmed that in September 1997 he and his wife advanced an amount of $30,000 which was used to pay the deposit on the K property and to pay part of the purchase price of the tractor. He confirmed that that loan was repaid approximately two months later. He said: “we did not charge [the husband] and [the wife] any interest in respect of this loan”.
That statement does not seem to be accurate given that annexure L makes it clear that on 1 December 1997 he and his wife were repaid an amount of $30,358.15. The amount of $358.15 is marked as interest.
He says the second loan for $10,000 was given after the husband and the wife had purchased the B property to assist them with the running expenses of the property. It is said that that loan of $10,000 was repaid without interest. There is no objective evidence to indicate whether or not the assertion that interest was not charged was correct or incorrect.
The husband’s father gave evidence that a third loan of $14,000 was advanced in June 2005 to assist meeting the cost of shearing and other operating expenses and that that loan was to be repaid from the proceeds of sale of wool to be sold in September 2005. The husband’s father said that that loan still has not been repaid and that is not a contentious matter.

Conclusions in relation to contributions

I conclude that on a global approach a proper assessment of contributions of each of the parties would lead to a division of assets 65 percent to the wife and 35 percent to the husband.

SECTION 79(4)(d) – (g) FACTORS

As mentioned above, the wife in final submissions said that the distribution on contributions should be 80/20 in her favour. The wife further submitted that if the court agreed with that submission then there should be no further adjustment for s.79(4)(d) – (g) matters. There however should be an adjustment for s.79(4)(d) – (g) matters if the split on contribution is less than 80% in the wife’s favour.
The husband’s position is that there should be a 2% adjustment in favour of the wife for s.79(4)(d) – (g) factors.
The husband described himself as a labourer and grazier. He later said that he was a sheep cocky by desire and a labourer by necessity. Recently growing wool had been his main source of income.
The wife says that she has a lower income than the husband.
During the relationship the wife contributed to the support of the husband’s three children while they were spending time with their father on alternate weekends.
The wife has not commenced cohabitation with another person or remarried. The wife was asked questions about her relationship with Mr V. Mr V is the son of a long time family friend of the family. The wife is currently living in her house and has been there for a couple of months. This elderly woman had up until that time been hospitalised and had returned from hospital and the wife has book looking after her. Mr V lives in a separate dwelling on the same property. The wife agreed that she still had a romantic association with Mr V and that the two of them spent at least 2-3 days per week together. The wife in her initial answer to that question used the word “nights” but quickly recast the answer that she was giving to refer to days. This gentleman has advanced money to the wife from time to time and an amount which the wife says now totals $20,000. Given the history of the advances of money by Mr V, it would be unrealistic to ignore entirely the fact that Mr V provides some financial backing to the wife.
The wife says that she has skills sufficient to enable her to run the B property. She says she has been running it since she has been there and has developed skills in farm management in the process. She relies on the assistance of the Agricultural Management Consulting Services.
The husband at paragraph 24 of his affidavit asserted that the wife did not receive any maintenance or child support from her third child’s father during 1998, 1999 and 2000. He asserted that he supported this child from his income. Exhibit B is the wife’s bank records. They show regular payments (and one payment of substantially arrears) to the wife from the Child Support Agency. I am satisfied that Exhibit B establishes that the husband’s evidence at paragraph 24 of his affidavit is inaccurate and that the wife did in fact receive child support payments for her third child up to June 1997 (when the bank records cease). The wife gave evidence however that child support was paid after that date until the second child’s 18^th birthday.
The husband agreed that at the commencement of cohabitation the three children of his prior marriage were aged 7, 4 and 2. The wife’s third child was a member of the household. She was nearly 17 at the time of the cohabitation. The husband at paragraph 24 of his affidavit said “[The wife] did not receive any maintenance or child support from [her third child’s] father, so I supported [this child] from my income while she lived with us”. The husband was shown Exhibit B in the witness box. It was put to him that the statement in his affidavit was a deliberate mistruth. The husband said that the wife often complained to him that she had problems in relation to child support and he was only going by what she told him. The husband at best has made a careless statement in paragraph 24 of his affidavit.
At paragraph 24 of his affidavit the husband asserts that he assisted the wife’s third child meet business expenses when a cafe business was not successful and that he was left to pay an amount of $3,883.71 in respect of a supplementary card. The wife gave evidence that the debt from that card had been reduced by a clearance sale which included sale of plant and equipment from her third child’s business when it was shut down. The wife’s evidence was that after the clearance sale there was about $2,000 owing on the card and that the parties jointly agreed in the following January to give that amount to that child as a 21^st birthday present. The husband in cross examination conceded part of those assertions, although he said that the amount owing was more than $2,000 (he said $3,000) and that the notion to forgive that debt as a 21^st birthday present was the wife’s idea and during his oral evidence he seemed to distance himself from it. I find it unlikely however that the husband did not at least acquiesce at the time of the child’s 21^st birthday to the forgiving of the debt as a gift or present to her. The differences between the parties in respect of this evidence are fine ones and they relate to transactions that took place between the parties and an adult child. These are not matters to which I place any weight.

Conclusions in relation to s.79(4)(d) – (g) factors

I find that the husband has a clearly superior future earning capacity when compared with the future earning capacity of the wife.
Given the contribution that the husband made to the wife’s third child whilst he lived in the parties’ home and the contributions made by the wife towards the younger children of the husband when they visited the home, I do no believe any adjustment needs to be made of the type referred to in Robb and Robb (1995) FLC 92-555; (1994) 18 Fam LR 489.
I conclude that taking into account the matters referred to, an appropriate adjustment for the matters referred to in s.79(4)(d) – (g) would be 5 percent to the wife.

JUST AND EQUITABLE

The wife seeks an 80/20 division of net assets in her favour.
The husband’s position is that there should be a 53/47 split on contributions in the wife’s favour with a further 2% adjustment to the wife for s.79(40(d) – (g) factors. The overall result would be a 55/45 division in favour of the wife.
Both parties want to keep the farm. Both parties agree that the Isuzu Pantec and its accessories are transferred to the husband. The husband will keep the paintings. The wife wants to pay the husband on her April 2006 application $36,500. The husband wants to pay the wife on his case outline document an amount of $338,000.
Based on my findings in relation to contribution and s.79(4)(d) – (g) adjustment, there would be an overall alteration of property so that the wife would receive 70 percent of the net assets and the husband would receive 30 percent of the net assets.
I will consider whether or not that is a just and equitable outcome on an overall basis once I have set out how the assets are to be divided and what payment one party needs to make to the other.

Who obtains first option to receive the farm?

The question that I am required to decide at this stage is which party receives first option to retain the farm.
The husband argues that:-
250.1.He is a sheep cocky by desire and only a labourer by necessity.
250.2.He has a greater capacity to borrow in order to make the purchase.
250.3.He has a greater chance of making the farm a success because he has substantial ability to earn off farm income to supplement tough times on the land.
250.4.The wife’s proposal would require a splitting of the plant and equipment before she will exercise an option to take the farm.
250.5.The wife will not have the ability to run the farm as a viable ongoing operation.
The wife argues that she should have first option to retain the farm because she considers the B property her home and she sees herself as a displaced person. Her strongest argument is that she has contributed most of the capital that allowed the farm to be acquired. She also points to the evidence led by her on a relatively uncontested basis that the husband has been an obstructionist in allowing the wife to get back onto the farm despite the interim orders made by me.
Considering those arguments the most weighty is the fact that the wife has contributed most of the capital that has allowed the farm to be acquired. Accordingly it is my intention to allow her first option to retain the farm.

Distribution of farm chattels

I need, however, to consider the effect of the ultimatum that the wife gave the Court about only taking a selected number of the items from Table A. I have set out at paragraph 16 (and Table C) the list of items that the wife wishes to retain if she is to take the farm. The wife has agreed to take $31,750 out of the list worth $62,600. Counsel for the wife said that that is appropriate because the balance of the list in Table A are things like workshop items that the husband will be able to use elsewhere. Whilst that submission is partly true there are a reasonable number of items (items 9 through to 49) that do not fall within that category.
In addition to workshop items there are also reasonable amount of furniture. Item 169 is a 20ft shipping container which has been used for off site storage.
I do not entirely concede the wife’s ultimatum in relation to her only taking the items in Table C. I intend to allow her first option to acquire the property as long as she also agreed to take those items which seem to be associated with the current running of the farm.
Consequently I will require her to take items 9, 11, 12, 14, 15, 16, 17, 19 through to 44, 46 to 49, 52, 54, 57, 58 and 60 as well as item 169. I have for convenience set out in Table B the items that the wife will be required to take and the value ascribed to these items, totalling $52,820.
The wife’s option to acquire the farm will be conditional upon her taking those items.
Otherwise, the husband will take the whole of the plant, machinery and chattels on the farm if he retains the farm or they will be sold if he does not. I am aware there may be some slight advantage to the husband given the mathematical error referred to at the end of Table A, ($65,730 - $62,600 = $3,130) but I do not take that into account given the parties have agreed on the total value.

The wife’s application that she be made trustee for sale

In the event the neither party exercises an option to purchase the farm it will be sold. In those circumstances the wife has made an application that she be appointed trustee for that sale.
In support of that application she points to a history of non-compliance with orders by the husband and her assertion of a history of domestic violence. The wife’s application to be appointed trustee for sale was not an application that was foreshadowed in the wife’s original application and was made during final submissions.
The wife prima facie has an arguable case on the evidence before me to be appointed trustee. The husband however, may wish to present further evidence on that issue. The appropriate course is to not determine the wife’s application in relation to what is an implementation order. It may be a matter that needs to be determined at a later time. Of course if one or other of the parties takes up the option of purchasing the farm in accordance with the orders, then this issue will not need to be further considered.

Distribution if wife exercises option

In the event that the wife by the date specified in the orders, takes up the option of taking the farm then the assets and liabilities will be distributed in the following way:

H gets	30%
Assets
Item No.	Description	Percentage	Value
2	Artwork in possession of husband	100%	$26,500
4	Toyota Landcruiser	100%	$5,000
5	Household effects and furniture	100%	$7,000
7	Superannuation	100%	$10,000
8	Bank account	100%	$2,500
9	Stock	100%	$54,000
10	Wool	100%	$44,000
11	Isuzu truck and contents	100%	$30,000
12	Plant and equipment	16%	$9,780
13	Bank account (not disputed)	100%	$13,000
Liabilities
Item No.	Description	Percentage	Value
16	Liability to husband's parents	100%	$14,000
18	Husband's credit cards	100%	$25,600
H receives		$67,075
Net Assets		$229,255
W gets	70%
Assets
Item No.	Description	Percentage	Value
1	Real estate at B	100%	$700,000
3	Holden Jackaroo	100%	$2,000
6	Superannuation	100%	$6,000
12	Plant and equipment	84%	$52,820
14	Contents	100%	$2,000
Liabilities
Item No.	Description	Percentage	Value
15	Mortgage on B property	100%	$151,300
17	Liability to the wife's mother	100%	$9,517
W pays H		$67,075
Net Assets		$534,928

It can be seen from the table that under this option the wife is required to pay the husband $67,075. Standing back I consider that the distribution contained in the above table is just and equitable if the wife retains B property.
It is appropriate if the wife exercises the option to keep the farm that she also retain the company.
The wife will receive the items of plant, machinery and chattels set out in table B but the husband can chose to retain any item in Table B that is not listed in Table C by giving the wife notice within 14 days of these orders of his intention to do so. The amount that the wife then has to pay the husband will reduce by the total of the value of the items chosen.

Distribution if husband exercises option

In the event that the wife does not take up the option of taking the farm and the husband takes up the option of taking the farm, then the assets will be distributed in the following way:-

H gets	30%
Assets
Item No.	Description	Percentage	Value
1	Real estate at B	100%	$700,000
2	Artwork in possession of husband	100%	$26,500
4	Toyota Landcruiser	100%	$5,000
5	Household effects and furniture	100%	$7,000
7	Superannuation	100%	$10,000
8	Bank account	100%	$2,500
9	Stock	100%	$54,000
10	Wool	100%	$44,000
11	Isuzu truck and contents	100%	$30,000
12	Plant and equipment	100%	$62,600
13	Bank account (not disputed)	100%	$13,000
Liabilities
Item No.	Description	Percentage	Value
15	Mortgage on B property	100%	$151,300
16	Liability to husband's parents	100%	$14,000
18	Husband's credit cards	100%	$25,600
H pays W		$534,445
Net Assets		$229,255
W gets	70%
Assets
Item No.	Description	Percentage	Value
3	Holden Jackaroo	100%	$2,000
6	Superannuation	100%	$6,000
14	Contents	100%	$2,000
Liabilities
Item No.	Description	Percentage	Value
17	Liability to the wife's mother	100%	$9,517
W receives		$534,445
Net Assets		$534,928

It can be seen that if this is the distribution of assets then the husband would be required to pay the wife $534,445. Standing back I consider the distribution contained in the above table just and equitable in circumstances where the husband retains B property.
It is appropriate, if the husband retains the farm, that the husband retains the company. The husband will also take the whole of the items in Table A.

If neither party exercises the option to take the farm

In these circumstances there will need to be a sale of the farm and the distribution of assets will be as follows:-

H gets	30%
Assets
Item No.	Description	Percentage	Value
1	Real estate at B	50%	$350,000
2	Artwork in possession of husband	100%	$26,500
4	Toyota Landcruiser	100%	$5,000
5	Household effects and furniture	100%	$7,000
7	Superannuation	100%	$10,000
8	Bank account	100%	$2,500
9	Stock	100%	$54,000
10	Wool	100%	$44,000
11	Isuzu truck and contents	100%	$30,000
12	Plant and equipment	50%	$31,300
13	Bank account (not disputed)	100%	$13,000
Liabilities
Item No.	Description	Percentage	Value
15	Mortgage on B property	50%	$75,650
16	Liability to husband's parents	100%	$14,000
18	Husband's credit cards	100%	$25,600
H pays W	$228,795
Net Assets	$229,255
W gets	70%
Assets
Item No.	Description	Percentage	Value
1	Real estate at B	50%	$350,000
3	Holden Jackaroo	100%	$2,000
6	Superannuation	100%	$6,000
12	Plant and equipment	50%	$31,300
14	Contents	100%	$2,000
Liabilities
Item No.	Description	Percentage	Value
15	Mortgage on B property	50%	$75,650
17	Liability to the wife's mother	100%	$9,517
W receives		$228,795
Net Assets		$534,928

I take into account the proportion of assets the parties will receive based on my findings in respect of contributions.

The husband would pay to the wife $228,795 from his part of the proceeds. To achieve this, the order will provide the wife receives $457,590 ($228,795 x 2) before the balance proceeds are divided evenly.
Standing back I consider the distribution contained in the above table just and equitable in the event that there is a sale of B property.
There will be a clearance sale of the plant, equipment and chattels at B property.

I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 18 October 2007

[2007] FamCA 1242

18 October 2007

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Family Law

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