Rose and Mitchell

[2016] FCCA 771

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSE & MITCHELL [2016] FCCA 771

Catchwords:
FAMILY LAW – Property dispute – length of matrimonial relationship disputed but brief on any view – consideration of husband’s initial contribution – wife having primary care of young child – property pool to be divided 75/25 in favour of husband.  

Stanford v Stanford (2012) 247 CLR 108

Applicant: MS ROSE

Respondent: MR MITCHELL

File Number: MLC 1146 of 2015

Judgment of: Judge Burchardt

Hearing date: 3 & 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Melbourne

Delivered on: 14 April 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Nehmy

Solicitors for the Respondent: Kenna Teasdale Lawyers

ORDERS

1. That within 90 days of the date of these Orders (“the due date”):

   (a)the Respondent Husband pay to the Applicant Wife the sum of $43,076 (“the payment”); and

   (b)that contemporaneously with the payment the Applicant Wife shall at her expense remove any caveat lodged by her on her behalf encumbering the property at Property W being all of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property W property”).

2. That there be a declaration pursuant to Section 78 of the Family Law Act 1975 (Cth)(“the Act”) that the Respondent Husband retain all of his right, title and interest in the Property W property.

3. That the Respondent Husband shall be responsible for and indemnify the Applicant Wife in respect to the (omitted) Bank (“(omitted)”) mortgage (No. (omitted)) encumbering the Property W property.

4. That the Applicant Wife shall retain the following to the exclusion of the Respondent Husband:

   (a)her VW (omitted) motor vehicle (registration (omitted));

   (b)all monies held in any bank account in her sole name;

   (c)the proceeds from the sale of her (omitted) shares;

   (d)her household contents; and

   (e)all of her superannuation entitlements.

5. That the Applicant Wife shall be responsible for and indemnify the Respondent Husband in relation to:

   (a)any and all credit card liability in her name; and

   (b)any infringements or penalties for which she is liable.

6. That the Respondent Husband shall retain to the exclusion of the Applicant Wife:

   (a)his Holden (omitted) motor vehicle (registration (omitted));

   (b)all funds remaining in any bank account in his sole name;

   (c)his interest in (omitted) Pty Ltd and (omitted) Pty Ltd;

   (d)his (omitted) shares;

   (e)his household contents; and

   (f)all of his superannuation entitlements.

7. That the Respondent Husband shall be responsible for and indemnify the Applicant Wife in relation to:

   (a)the loans from his parents totalling $19,988;

   (b)his division (omitted) loan from (omitted) Pty Ltd; and

   (c)any taxation liability of (omitted) Pty Ltd and (omitted) Pty Ltd and all other liabilities of those companies.

8. That in the event that the whole of the payment to the Applicant Wife pursuant to paragraph (1)(a) has not been made by the Respondent Husband by the due date, the Property W property shall be sold as soon as possible out of Court (“the sale”) and the proceeds of the sale shall be applied as follows:

   (a)firstly, to pay all costs, commissions and expenses of the sale;

   (b)secondly, to discharge the mortgage and any other encumbrance affecting the Property W property;

   (c)thirdly, so much of the payment as is then outstanding to the Applicant Wife together with interest at the Victorian penalty interest rate from the date of default until the date of payment; and

   (d)fourthly, the balance to the Respondent Husband.

9. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels currently on/at the Property W property are deemed to be in the possession of the Respondent Husband);

   (b)insurance policies remain the sole property of the owner named thereon; and

   (c)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.

AND THE COURT NOTES:

(A)That pursuant to Section 81 of the Act, the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1146 of 2015

MS ROSE

Applicant

And

MR MITCHELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a property dispute arising from what was, on any view of the matter, a very brief relationship. The major asset of the parties is the former matrimonial home, which was bought by the husband in 2011. The parties’ relationship commenced when they met in April 2010 (wife’s version) or May 2010 (husband’s version). They separated in August or September 2014.

2. The husband proposes that the wife receive 20 percent of the property pool and the wife seeks an order dividing the parties’ property pool be made 65 percent in her favour, with 35 per cent to the husband.

3. For the reasons that follow, I am going to order that the parties’ property be divided 75 percent in favour of the husband and 25 percent in favour of the wife, and that the parties should retain their respective superannuation.

The Facts

1. Despite the intensity with which the parties have persecuted the proceeding, much of the background facts are either uncontroversial or the subject of disputes of small moment. The wife was born on (omitted) 1981 and the husband on (omitted) 1972. They first met in April or May of 2010 and there seems to be no real dispute that an intimate relationship commenced between them relatively quickly thereafter.

2. The parties started to spend regular time together, including overnight time. The husband put the amount of time as approximately two nights a week and the wife at five. On any view, however, on either version, they were not permanently cohabiting in the early months.

3. The husband had divorced in 2010 and sold his former matrimonial home, where he was living when he first met the wife in this proceeding and paid out his former wife pursuant to earlier orders.

4. The husband already had ownership, effectively, of a business, (omitted) Pty Ltd (“(business omitted)”), and his evidence that he engendered a tax debt through that company as a result of the settlement with his former wife was not in my view seriously challenged. The debt is of the order of $45,000.

5. The husband effectively ceased the operations of (business omitted) at around about the time he was becoming more intimate with the wife. I note that in her affidavit filed 18 January 2016 at paragraph 3, the wife concedes that (business omitted) was folded up, so to speak, during the currency of her relationship with the husband.

6. The husband bought the matrimonial home in Property W in March 2011 with settlement occurring in July 2011 and, as I find, the parties moved in effectively straight away. Thereafter, substantial renovation work was done on the Property W property. There was a significant amount of dispute during the evidence given at Court as to who did how much work. It seems more probable than otherwise that the husband did somewhat more work, because he is a qualified (occupation omitted), although I should make it clear in saying that that I accept that the wife committed herself fully to what I might describe as the project.

7. It should be noted that the works are not complete on the property. There is some difference of opinion between the parties as to why that is so.

8. Following cohabitation in July 2011, the wife fell pregnant and the parties’ child, X, was born on (omitted) 2012. 

9. The Property W property was purchased for a price of $375,000 plus stamp duty of $16,289. The husband took out a loan of some $227,000, with a drawback facility for the funds that were not disbursed in the purchase. But as is clear from the materials, he repaid his parents $65,000 in July 2011. This was in part repayment of a loan of some $51,000 applied towards the settlement with the husband’s former wife and, as deposed by the husband’s father, otherwise repaid earlier extant debts. 

10. Although the wife complains now that she was not kept properly informed about these matters, it seems clear beyond doubt that these repayments were made.

11. The parties married on the (omitted) 2013 and separated on 25 August 2014 (husband’s version) or September 2014 (wife’s version).

12. It is readily apparent that each of these parties has strived as strongly as they are able to either lengthen or diminish the duration of the relationship, as the case may be.

13. During the relationship, both of the parties worked. I shall return to this aspect of the matter when I deal with contribution issues.

14. The wife is the primary carer of X, who spends some, but not very extensive, time with the husband. 

15. The husband concedes that the wife contributed $7,250 in cash towards the renovation work done on the matrimonial home.

16. It is also apparent that when the wife’s parents’ former home at (omitted) was sold, a sum of $20,000 was received (the husband sought initially to diminish this to $17,000, but the exhibits are clear). This was expended to buy a car, which the wife presently retains.

17. Against this background, it is appropriate to come to the first issue to be addressed, namely whether there should be a property adjustment order made.

The Decision of the High Court in Stanford v Stanford (2012) 247 CLR 108

1. The High Court made it clear in its decision in Stanford that the first task for the Court in a case such as this is to determine what the parties’ legal and equitable interests are and to determine whether it is appropriate that there be an adjustment to property interests. However, as counsel for the respondent husband (the wife was self-represented) submitted, this is a case in which both parties have conducted their case on the footing that it is appropriate that there be such an adjustment, and as the High Court pointed out in Stanford, this is one of the very many cases where the parties no longer conduct their financial affairs as a married unit. The whole basis upon which they had previously conducted their affairs has altered and it is manifestly appropriate that the Court should regard it as just and equitable to make an order adjusting the parties’ property interests.

2. This leads then to consideration of the pool.

3. One of the areas of contention between the parties is the proper value to be allotted to the former matrimonial home at Property W. Scarcely surprisingly, the husband has at all times sought to establish a lower value and the wife a much higher one. In the end, the two valuers engaged by the parties produced a memorandum, annexure DT5 to the affidavit of Mr D sworn 28 January 2016. This notes that the valuation of Mr D (the husband’s valuer) was $450,000, and that of Mr F (the wife’s valuer) was $470,000, because they did not agree as to the value of the land. They agreed the value of improvements was $150,000.

4. I shall return to this aspect of the matter when I deal with the evidence.

5. The husband has a car worth $15,000 (taken as a concession against interest – this is the figure nominated by the husband) and the wife has a car worth $10,700 (a figure not disputed by the wife in cross-examination). Following discussion with the Court, counsel for the husband agreed (and the wife did not thereafter dissemble) that the Court should ignore the parties’ household contents and funds currently held in the bank.

6. Both the parties had shareholdings which are almost identical in value, and in the circumstances, it is inappropriate in my view to include them in the pool, especially since they both appear to have been given gifts from the parties’ respective fathers.

7. The liabilities of the parties are the mortgage on the Property W property in the sum of $225,000, and the husband’s (omitted) Bank credit card, as at separation, in the sum of $4,448. Although the wife now has a credit card debt, it was her evidence that she did not have any such debt at the time of separation. There are disputed debts relating to tax moneys owed by (business omitted) and by the husband’s new company, (omitted) Pty Ltd, and indeed, as I understand it, his personal taxation liability is also in issue. There is also a dispute as to a loan asserted by the husband to his father in the sum of $19,988.

The Evidence Given About the Disputed Matters

1. I have not dealt at all with the parties’ affidavit material. I have of course had due regard to it. The reason for this is that, as I have earlier indicated, most of the facts in this case are not really in dispute in any substantial way. There is very considerable interpersonal bitterness between the parties (scarcely surprisingly, as they have been separated only for a short time – and the difficulties between the parties appear to have been exacerbated by the fact that, according to the wife, the husband infected her with herpes, which he had not disclosed he suffered from – a matter mentioned by the wife more than once and not subject to cross-examination challenge). 

The Evidence of the Wife

1. Given her self-representation, the wife’s opening was to a considerable extent evidentiary in its character. She asserted that she commenced cohabitation with the husband in 2010 after meeting in April 2010 and had rented out her own residence. She said during the relationship she was earning approximately $1,300 per week, although she started for the first six months at $600 per week. She said that she did much if not most of the renovation work on the property at Property W and was vivid in her complaints about the lack of assistance given to her in domestic offices by the husband during the relationship.

2. She complained vividly about child support issues, asserting essentially that the husband was deliberately under-declaring his income. She complained about drawdowns on the mortgage and the payment of the $65,000 to the husband’s parents. She said that she is now a (occupation omitted) earning approximately $300 a week, but $200 of that is expended on associated costs. She noted that X is only three and that she pays 75 percent of the costs associated with X’s upbringing.

3. When sworn, the wife confirmed her affidavits and financial statements were true and correct.

4. Under cross-examination by counsel for the husband, the wife asserted that the valuation at $450,000 was too low. It was put to her that her own valuer had said $470,000 and she conceded that there was no affidavit from the valuer, Mr F. The wife was adamant that if the Property W property had been assessed against comparable properties, the valuation would have been at least $500,000. She asserted that the joint letter DRT5 was on “your letterhead” and that “your valuer took control of the situation”. 

5. The wife confirmed the various agreed values to which I have already referred. She conceded that the husband had sold his former matrimonial home, but said that this was to clear his debts. She took issue with the payment of GST by (business omitted).

6. The wife asserted that (business omitted)’s debts arose before her relationship with the husband and were not her business. Although the wife put the various taxation obligations asserted by the husband in issue, when faced with the figures in exhibit R1, she was, significantly, unable to disagree. She accepted the husband’s (omitted) Bank credit card debt of $4,448 as at separation. She confirmed, as earlier indicated, that she did not have a credit card at separation.

7. The wife did not agree that the husband owed his father $19,988. She said that the husband worked for his parents and if any money was advanced, it was a gift. She said all this was new to her and had never been told to her.

8. The wife conceded that $65,000 was transferred to the husband’s parents, but said she had not been told about it.

9. There was a certain amount of evidence in cross-examination about the extent to which either of the parties contributed both to the renovations of the Property W property and the properties they had previously owned. It is sufficient to say, as I have already indicated, that both parties contributed, but that the husband as a (occupation omitted) would probably have contributed slightly more. 

10. The wife confirmed that the husband arranged the purchase of the Property W property, which was put in his name only, leaving open an opportunity for a first home loan for her later. The wife confirmed that she had no assets at the start of the relationship, save her interests in (omitted). She has been employed as a (occupation omitted) during the relationship and had given up (occupation omitted).

11. The wife, as I said, was vivid in her criticism of the husband for failing to look after X. She said this was one of the biggest issues and I would interpolate and say that this evidence was given with considerable conviction and I accept it.

12. It emerged that X now spends from 2.15pm on Friday to 6.30pm with his father each week and in school holidays from 9.30am on Friday to 6.30pm on Saturday. 

13. The wife conceded that the $20,000 received when (omitted) was sold in 2012 was applied to the purchase of a car which she still possesses. 

14. The wife deposed that her income was $5,000 per month during the relationship, apart from the first six months, but was driven to concede that her income was $17,000 in 2012, $15,000 in 2013 and $18,130 in 2014. She sought to qualify those levels of income by asserting that she was able to conduct her affairs in such a fashion as to minimise tax and gain tax benefits, so to speak, for the parties.

15. The wife confirmed that she has now gone back to (occupation omitted) and she is trying to build it up as much as she can but that this would be difficult until X went to school.

16. The wife was questioned about her part N expenses in the Financial Statement but in my view her answers were fair and reasonable.

17. She did concede that the $180 per week in legal fees in Part N is no longer being paid.

18. The wife asserted, almost in passing, that she wanted $150 per week maintenance for X but as I indicated at the time, this is a matter of child support properly pursued through the assessment process.

The Evidence of the Husband

1. The husband in evidence-in-chief confirmed that he was the director and owner of (business omitted) from about 2004 to 2012. He tended various tax returns. He said that $38,000 GST owed by (business omitted) was because of his settlement with his former wife. He sold properties which accumulated GST. Payment is not yet required.

2. Under cross-examination by the wife, the husband confirmed that he had taken out loans with the company to pay out his former wife.  The money he received from settlement of his former matrimonial home was either paid to his ex-wife or to his parents. He paid his former wife $173,000 and did not think it was $214,000. He was unable to recall whether he had told the wife that he was debt-free at the time they moved in together. He was adamant that the wife knew about the GST debt because it was necessary to borrow from his parents to achieve what the parties’ wished to achieve. He said he had told the wife that he had to borrow these monies. He said he borrowed approximately $19,800 for renovations and extensions to the house over the period of the relationship. He conceded that the wife contributed $7,000 for the bath, tapware and driveway material.  He said that a mortgage had been drawn down $20,000 for renovations.

1. The husband was cross-examined about why the areas of the improvement works still extant at the matrimonial home were not finished.  His answers were in my view unresponsive and self-serving (a characteristic of the wife’s evidence also).

2. The husband was cross-examined about his business’ turnover in 2013 being over $300,000 with a declared income of $14,000 but I found his answer that this was not a profitable job was believable. The husband confirmed that his average income is $1,300 per week gross. 

The Evidence of Mr D

1. Mr D adopted his affidavit as true and correct. Under cross-examination by the wife, he said that he had followed the instructions given to him in the valuation process. When the house is finished, he said it would be worth more but would still be worth less than $500,000. It would be worth roughly $470,000 when finished.  Mr D was cross-examined energetically by the wife about the extent to which he had made appropriate comparisons with comparative properties. It is sufficient to say that Mr D’s answers were compelling.  He was a very fair witness who responded directly and in my view entirely comprehensively to any questions put to him. He is clearly an expert in his field. His evidence was not shaken at all by the cross-examination.

The Evidence of Mr Mitchell

1. Mr Mitchell is the husband’s father and he adopted his affidavit as true and correct.  The affidavit confirms that his son owes $19,800 and that he wishes it repaid. He conceded under cross-examination that there was no written agreement about the loans. 

2. It is sufficient for these purposes to say that Mr Mitchell impressed me as an entirely honest witness who was quite clearly telling the truth.

Findings on the Disputed Matters in the Pool

Matrimonial Property

1. The matrimonial property is as I find worth $450,000. Counsel for the husband submitted, correctly in my view, that there would have been many questions he would have wished to put to Mr F had the wife put him on affidavit and had him called. The wife made no endeavour to have Mr F give evidence and at no stage indicated to the Court that she desired to do so. The difference between the two valuations is small in any event. As I have indicated, Mr D impressed me considerably as a witness. I thought his answers were cogent and believable. I value the matrimonial home at $450,000. It is to be noted, however, that it is likely that when fully renovated, as I suspect it ultimately will be, it will be worth a slightly higher figure.

2. It should be noted, however, that even that proposition needs to be approached with the obvious caution that the property is where the husband lives. If he sells it, he will simply have to buy another property in the same market.

The Tax Debts

1. The materials in exhibit R1 make it clear that the various tax debts asserted by the husband do, indeed, subsist in the sums that he asserts. Given that (business omitted) only started when (business omitted) stopped, and that even on the wife’s case (business omitted) stopped after the commencement of the relationship, it is clear that the tax debt owed by (business omitted) accrued during the relationship and should be included in the pool. Likewise, the husband’s personal tax liability is equally clearly one that accrued during the relationship.

2. The difficulty is the two tax sums owed to the Australian Tax Office by (business omitted). Both these debts effectively predate the start of the relationship. It is true, of course, that the GST liability appears to have accrued at the time the husband paid out his former wife and sold the property owned by (business omitted) to do so. However, on any view of the matter, this was a debt antecedent in any real sense to the relationship commencing. The husband’s position in large part in the proceeding is that since he came into the relationship with the Property W property he should, subject to minor adjustments for contributions by the wife and future needs, retain it. There is force in such an argument. In my view, however, the same argument applies to his tax debts. The tax debts of (business omitted) were wholly his. It was his company. The wife never had any interest in it or benefit from it. To visit it upon her now in a relationship of such short duration is in my view wholly inappropriate.

3. The loan from the husband’s parents (effectively his father) in the sum of $19,988 is clearly a loan that the husband will have to repay and given that it was advanced during the relationship to renovate the property, it is clear that it should be included. 

4. Accordingly, the pool as I find it is:

   ·Property W at $450,000;

   ·Holden (omitted) (husband) $15,000;

   ·VW (omitted) (wife) $10,700;

   ·Total: $475,700.

Liabilities

·Home mortgage:  $225,000;

·Australian Tax Office ((omitted) Pty Ltd):  $3,735;

·The husband’s tax liability:  $7,424;

·Husband's (omitted) Bank credit card:  $4,448;

·Loan from husband’s parents:  $19,988;

·Total:  $260,595.

Total Net Assets

·$215,105.

1. The superannuation of the parties is respectively $21,057, husband, and $9,542 wife.

2. It should be noted that, as counsel correctly submitted, neither party has sought a superannuation-splitting order and given the brevity of the relationship, it is plainly inappropriate to make a separate adjustment to superannuation interests or to otherwise in my view include it in the pool. Neither has contributed, even on the most beneficent view of their efforts, in any meaningful way to the superannuation each of them possess.

Contribution

1. The reality is that this relationship did not last for any great length of time. As I find, an intense relationship obviously developed during the course of 2010 between the parties and there is no question that they commenced cohabitation in July 2011. Quite what weight is to be given to the antecedent period is in one sense problematic. The parties were undoubtedly moving from the heady abandon of a no doubt extremely satisfactory relationship towards something incipiently more significant. In truth, it would be a matter for some speculation as to whether the parties would have got married had they not conceived their child, a conception that was not planned on either party’s version of the events. It is neither necessary nor indeed possible to isolate, so to speak, the point at which this amorous relationship crossed the bridge and became a committed relationship of a sort to which the Court should have regard. It is in my view sufficient to note that at least part of the period when the parties were, to coin the phrase used by counsel, dating could not have been of a character that constituted a marital relationship.

2. In any event and taking it at its longest (which on the wife’s case would seem to be from commencement in late 2010 to separation in 2014), this was a relationship of under four years. The cohabitation period was only just over three years. On any view, it was not a long relationship. The wife’s assertion in final submissions that a relationship of five years is a long one misconceives the nature of the way in which this Court looks at de facto/marriage relations. It was very short.

3. Nonetheless, during this short relationship, both parties did their best. The husband was in all probability making somewhat more money than the wife. Her assertions that she was making $5,000 a month simply do not correlate with her tax returns. Nonetheless she clearly had the major burden of looking after the child. As I have indicated, I accept that the husband was dilatory in this regard. 

4. Both of these parties contributed as best they were able to the renovations on whichever properties they worked on and there is no question that their endeavours would fairly be regarded as equal. 

5. Counsel for the husband submitted that a 10 percent adjustment of the whole pool in the wife’s favour was appropriate and in my view that is a generous allocation. Even accepting the version of events that I have found, it was not a massive contribution bearing in mind the enormous weight to be granted to the husband’s initial contribution. 

6. The parties have their cars and their superannuation and relevantly precious little else of any value. The matrimonial home was bought wholly by the husband from his own resources and without his contribution there would be effectively virtually no asset pool whatsoever. In my view calibrating all these matters together, an assessment of the party’s contributions would be 90/10 in the husband’s favour.

The Future Needs Issues

1. The wife is in generally good health although it appears that she has herpes. It is to be presumed that the husband also suffers from this condition. This will doubtless make it to an extent arguably more difficult for them to engage in further relationships but I am simply not in a position to evaluate what, if any, weight in any percentage sense should be allotted to this. It is part of the general background.

2. Otherwise so far as the materials reveal, both parties are in good, unexceptional health. The husband, although he has had some vicissitudes of recent times will be able to work in his (occupation omitted) whether as an employee or as an independent contractor. The wife will also be able to work in time (she is after all nine years younger than the husband) but I accept that her capacity to do so until X reaches school age will be significantly impacted. It is apparent that the issue of child support, as is so often the case, is likely to be an ongoing and vexed one between the parties. 

3. The wife will have the primary responsibility for the care and cost associated with attending to X’s needs and this is, of course, a significant factor. 

4. Counsel for the husband sought to suggest that a 10 percent adjustment in the wife’s favour under this heading would be appropriate. The wife, who seeks 65 percent of the property pool awarded to her did not express particular loadings for contribution or for future needs but rather expressed that single outcome. This submission is radically wide of the mark. The wife does not appear to understand how brief this relationship was when looked at objectively and her figure is, I am afraid, utterly unrealistic.

5. A further consideration to be borne in mind is that although I have excluded (business omitted)’s tax debts from the pool, they will need to be paid at some point. The husband sought to tender a letter from his accountant which I refused to admit because, as I indicated, the terms of the correspondence were inconsistent in my view with the material that now constitutes exhibit R4 which accompanied it. Nonetheless I do accept that as a matter of practical politics it is highly probable that the husband will have to pay $45,000 on (business omitted)’s behalf. Should he fail to do so, it seems entirely probable that a liquidator appointed to wind up (business omitted) (the inevitable outcome if tax is not paid) would seek to recover the loans extant to Mr Mitchell. If the loans were to be forgiven (as I strongly suspect will ultimately be the case in any event given that Mr Mitchell is the sole director and shareholder of the company) there is some prospect that they might attract tax in any event pursuant to Division 7. 

6. All of these aspects of the matter are by no means wholly clear but they are not irrelevant. 

7. It should be noted, of course, that much of the value of the pool does not solely come from the husband’s initial contribution of over $250,000 towards the purchase of the property but rather from the accrual in its value from the purchase price of approximately $300,000 (including stamp duty) to some $450,000 now. I note that the value of the improvements on the property is agreed to be $150,000 and the evidence suggests that this has occurred at least in part during the relationship.

8. These are in no way areas of precision but in my view in all of the circumstances and laying particular emphasis upon the wife’s future child-rearing responsibilities and the inhibitions this will provide to her own incapacity, the wife should receive a 15 percent adjustment as to future needs. 

Conclusion – Just and Equitable

1. In my view, an outcome that gives the wife 25 percent of the matrimonial pool is in all the circumstances appropriate. I have had regard to the cases cited to me by counsel and they would suggest that in not too dissimilar cases outcomes of 80/20 have been obtained.

2. It is vital to remember, however, that each case turns upon its own facts and the cases cited involve small but by no means insignificant differences as to facts.

3. The net value of the pool as I have described it is $215,105 of which 25 percent is $53,776. The wife will retain her car worth $10,700 and accordingly the figure that the husband will be required to pay the wife is $43,076.

4. I have drawn orders to give effect to this conclusion including what might be described as standard orders for sale of the property in the event that the money cannot be paid within a given time. The form of the orders generally reflects those prepared by the husband, which in my view are appropriate in the circumstances.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 15 April 2016