S and v

[2007] FCWA 26

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	S and V [2007] FCWA 26
CORAM:	THACKRAY J
HEARD:	23 & 24 NOVEMBER 2005, 3 JULY 2006, 15

JANUARY 2007, 1 FEBRUARY 2007

DELIVERED:	15 FEBRUARY 2007
FILE NO/S:	PT 348 of 2004
BETWEEN:	S

Applicant/Wife

AND

V

Respondent/Husband

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Catchwords:

Property - very short marriage - contributions - s 75(2) factors - poor health - impact of restraining order on earning capacity

Legislation:
Family Law Act 1975, s 75(2)
Family Law Act 1975, s 79(4)

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr R Bannerman
Respondent:	Mr M Supljeglav

Solicitors:

Applicant:	Bannerman Solicitors
Respondent:	DS Family Law

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

Chorn & Hopkins (2004) FLC 93-204
Khademollah and Khademollah (2000) FLC 93-050
Samson v Hanna [2000] FamCA 1875
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1 I am required to determine [Ms S]’s application for property settlement arising out of her very short marriage to [Mr V].

Orders sought

2 [Ms S]’s original application was remarkable for its brevity. Her

previous solicitor sought only an order “that the Matrimonial Property
be divided between the Applicant and the defendant”[sic].
Unsurprisingly, [Mr V] filed a response indicating his consent.

3 Notwithstanding this serendipitous beginning, the litigation has had a tortuous journey through the Court. The orders finally sought by the parties were contained in their Papers for the Judge. [Ms S] wanted a payment of $108,600, whereas [Mr V] proposed she receive only $8,600. It is common ground that the parties will each keep the assets they currently have, which in [Mr V]’s case includes the unencumbered former matrimonial home.

The delay in finalisation of the matter

4 The trial commenced in November 2005. Most regrettably, the proceedings had to be adjourned due to the unavailability of [Ms S]’s specialist medical practitioner. The trial was not ready to resume until July 2006, at which time [Ms S]’s new physician gave evidence. There was then further delay in finalisation of the proceedings, pending receipt of further evidence, this time relating to a deterioration in [Mr V]’s health. In December 2006, a report from his physician was tendered by consent.

5 I heard a further application by [Ms S] in January 2007, seeking leave to re-open to provide updated medical evidence. The matter had dragged on for far too long and I did not accede to the application, although I did advise the parties of the finding I proposed making on the evidence previously provided, which tended to support the wife’s case. Within a matter of days, [Mr V]’s solicitors sought leave to re- open in order to file two affidavits. The first was from [Mr V]’s physician concerning a further deterioration in his health. The second was from [Ms S]’s former employer indicating that she had advised him she not only wanted to resume work but had also recovered her health.

6 I permitted both of these late affidavits to be received into evidence. The evidence of [Mr V]’s physician was not in dispute. [Ms S] did not dispute the main elements of the evidence provided by

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the employer, but would have wanted to explain the circumstances surrounding her request to resume employment. She also, in effect, wanted to renew her application to be able to provide an update on her medical condition. To have allowed the matter to be relisted for this purpose would have meant further significant delay in publication of my judgment and would have caused even more legal costs to be incurred in what, on any view, is a modest claim. I indicated that I would receive no further evidence and would give my judgment as soon as practicable.

The parties and their relationship

7 [Mr V], (who I will call “the husband”), is 59 years of age and is employed as a [clerk]. [Ms S], (who I will call “the wife”), is 44 years of age and is unemployed. She has one child from a previous relationship, [M], who is 12 years of age.

8 The parties met when they were working as [clerks] at [a government agency]. They commenced a relationship in 2002 and were married in January 2003. There is a dispute about when they commenced cohabitation, with the wife recalling they started living together in January 2002, whereas the husband insists they did not cohabit until a year later.

9 The relationship ended in early October 2003, when the husband obtained an ex parte restraining order. This not only forced the wife to vacate the home, but it also meant she could no longer work at the [same government agency]. Since then, the husband has continued to reside in the home and the wife has rented.

Brief chronology

10 The wife was living in Homeswest rental accommodation when the parties commenced their association. The husband was living in one of two unencumbered properties he owned.

11 The husband had much greater financial resources than the wife and he paid almost all of the costs associated with their wedding and honeymoon. His contribution to these expenses amounted to almost $25,000, including over $5,000 spent on rings he gave to the wife.

12 The husband sold both his properties in 2002, receiving in total around $170,000. In the middle of 2002 he purchased what was to become the matrimonial home in [the Northern suburbs]. It cost $176,000 - i.e. just a few thousand dollars more than what the husband

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received from the sale of his properties. The [Northern suburbs] property quickly appreciated in value after significant funds and effort were expended to improve it.

13 The wife claims the parties were already living in a de facto marriage relationship when the husband acquired the [Northern suburbs] property. In fact, she says they had been in such a relationship since as early as January or February 2002. She recalls that the husband was spending approximately five or six nights every week at her house, whereas he says he only stayed with her “sometimes”. I find it was likely the husband spent the majority of the time staying with the wife in her house from around February 2002, but I was not satisfied they commenced living together on a full-time basis until their marriage in February 2003.

14 The parties acquired a block of land in [a nearby suburb] in joint names shortly prior to the end of their relationship. The funds required were borrowed, save for the deposit which the husband contributed. The block sold (soon after separation) for about $19,000 more than was paid for it. However, after allowing for the costs of sale ($8,800) and the stamp duty that would have been paid on purchase, the “profit” was fairly modest.

Credibility

15 I had serious reservations concerning the credibility of both

parties.

16 On a number of occasions, the husband had to acknowledge that portions of his affidavit evidence were untruthful. Although he had given sworn evidence elsewhere admitting he had assaulted the wife, the husband repeatedly denied ever having done so in his oral evidence – until he was shown his earlier sworn evidence. I am satisfied that the husband often gave the answer he considered would be most helpful to his case.

17 Similarly, the wife had to acknowledge that a number of claims in her affidavit evidence were not accurate – for example, in relation to expenditure on improvements to the [suburban] home. She blamed her first (incompetent) legal advisor for the errors, although the affidavit appeared to have been drawn by her second legal advisor. I was satisfied the wife was also inclined to give the answer that she felt most suited her case.

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18	In view of my doubts about the credibility of both parties, I had to treat all of the evidence with more than the usual scepticism.

Property settlement approach

19 I am required to follow a four-step process in dealing with an application for property settlement pursuant to the Family Law Act 1975. Those steps are:

• identify and value the assets and liabilities of the parties;

• assess the parties’ contributions to the assets;

• assess a range of factors set out in s 75(2) and s 79(4) of the Act; and

• consider whether the order proposed is just and equitable.

The assets and liabilities

20 I find the assets and the liabilities of the parties at the commencement of the trial to be as follows:

Description Husband Wife

[Northern suburban] property	$300,000
[Motor vehicle]	25,000

Furniture 10,000 $2,000

Proceeds of [block of land] 8,600

Husbands's Savings	8,500
Husband’s superannuation	61,240

Wife’s superannuation
Wife’s car 6,000

7,000

Total Assets	404,740	23,600
Liabilities

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Esanda loan 7,000

Capital gains tax	N/K	N/K
Total Liabilities	N/K	7,000

21 The net value of the asset pool at the commencement of the trial was therefore $421,340.

22 The reasons for my findings in relation to the disputed values are

set out below.

[Northern suburbs] property

23 The husband asserted that the property was worth $290,000 and the wife asserted it was worth $300,000. Relying on remarks of Finn J in Khademollah and Khademollah (2000) FLC 93-050, counsel for the husband submitted that I should adopt the lower of the two estimates, since it was incumbent upon the wife to provide evidence of the higher value. This is a proposition I would ordinarily accept, but not on this occasion for the following reasons:

• The husband did not serve his Statement of Financial Circumstances and Papers for the Judge until just prior to the trial. The wife was therefore unaware of what value the husband would place on the property.

• The wife’s solicitors made appropriate efforts with a view to obtaining an updated valuation of the property, but the husband did not initially cooperate. By the time he did provide a degree of cooperation, it was too late.

• The evidence given by the husband concerning his views about the percentage increase in the value of property since an earlier valuation supported the higher valuation.

24 As a result of the unfortunate delay in finalisation of the proceedings, it has become necessary to review the valuation of the property. The parties have agreed that I may assume the value of real estate in [the Northern suburbs] has increased 40% since the start of the trial. I therefore find the value of the property at the present time is $420,000.

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Vehicles and furniture

25 Applying the principle in Khademollah, I accept the lower estimate of the values of the parties’ motor vehicles and furniture.

Legal fees added back

26 The wife’s counsel argued that the husband’s paid legal fees, amounting to about $12,000, should be added back in the asset pool. It was not established from what source the husband had paid those fees, other than that they came from “savings”. Such savings could have been funds left over from the husband’s inheritance or from post- separation savings from his income/military pension. Although there was no evidence to support the proposition, the husband’s Papers for the Judge indicated that he had about $10,000 in savings at the date of separation. He still had about $8,500 in the bank at the date of trial, which would indicate that the legal fees came largely from the husband’s income post-separation. I consider the wife’s counsel needed to go further than he did in establishing the source of the funds to pay the legal fees before he could justify the fees being added back into the pool. Chorn & Hopkins (2004) FLC 93-204.

Capital gains tax

27 It was acknowledged there would be capital gains tax payable on disposal of the [suburban] block, but there was no calculation of what this might be. Given the relatively modest profit made on sale, and the parties’ low incomes, the tax would not be substantial.

Contributions

28 The wife submitted in her Papers for the Judge that contributions should be assessed 70:30 in favour of the husband; however, during his closing address, counsel for the wife submitted that the wife’s contribution should be assessed at only 20%. Counsel for the husband submitted that the wife’s contributions should be assessed as being worth only 5% of the total asset pool.

Initial contributions

29 Although the husband estimated his two properties were worth $185,000 at the time the relationship commenced, he received only somewhere around $170,000 on sale. The husband also received an inheritance of about $155,000 in February 2002. I find that some of the inherited funds were expended on improving the husband’s

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original properties to make them ready for sale. The evidence was unclear, but it seemed most likely he had spent about $3-4,000 on improving one property and perhaps a little less on the other.

30 The husband had a car worth between $4,000 and $5,000. He also had some furniture, which he says was worth $10,000, but there was no evidence to substantiate that valuation. The furniture was all given away in any event. The wife conceded in her affidavit (although her counsel did not in his closing submissions) that the husband had $50,000 in superannuation at the commencement of cohabitation.

31 The wife had assets of little value at the commencement of the relationship. She had a household of furniture (which I very much doubt was worth as much as the $15,000 she suggested), a van worth about $3,000, superannuation of about $2,000 and savings of about $2,000.

Other financial contributions

32 Both parties were employed during the relationship. I find each of them contributed their income to the relationship in one form or another.

33 The wife’s evidence about her income was somewhat confused because at one stage she said she earned $750 to $800 per week, when in fact that was her fortnightly income. The wife did not take issue with the husband’s claim that her gross income was $24,000 in 2001/02, $20,783 in 2002/03 and $19,976 in 2003/04. The husband was earning about $25,000 per annum and he also had a service pension of around $20,000 per annum.

34 Although time was spent at the hearing working out who had paid for a variety of expenses during the time that the parties lived together, I found this to be a somewhat unproductive exercise. The broad picture that emerged was that the husband made a greater financial contribution than the wife because he was earning/receiving more income and had no dependants. The wife used her modest income to cover $100 per week rent on her Homeswest home (including for four months after the date of the marriage) and living expenses for herself and [M]. I accept that she also made what could only have been a very small financial contribution to the [Northern suburbs] property, as well as making a couple of mortgage payments on the [block of land].

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35

Although the husband asserted he had seen the wife giving money to relatives, his evidence in relation to this issue was entirely lacking in detail. I am not prepared to find that the wife ever made more than perhaps occasional modest gifts to relatives. I doubt that this was of great financial significance as, for example, the money the husband spent on alcohol. Even if he drank as “little” as he admitted, his weekly alcohol bill would have been quite high. His evidence that the wife drank as much as him was unconvincing.

Non-financial contributions

36 I am satisfied the wife made a much greater non-financial contribution than the husband. She worked a few less shifts than he did and in any event I find she was quite an industrious person. The husband admitted he gave her “carte blanche” in undertaking the significant work done in redecorating the [Northern suburbs] home and establishing the garden. He did provide her with some assistance, but I am satisfied she did much more of the work than he did. On the other hand, I also consider the wife engaged in a degree of hyperbole in chronicling the work she did around the property, bearing in mind that contractors were employed to undertake the major tasks.

37 I also find that the wife undertook much more of the domestic duties than the husband. Although he made some contribution, I find it was comparatively modest. I accept that the wife would have been expected to contribute somewhat more of the effort involved in looking after the home, since [M] was also living with them, but even taking that matter into account, I consider that her contribution was greater.

38 There was no evidence the husband made any non-financial contribution for the benefit of [M] other than picking her up from after-school care occasionally.

Post separation contributions

39 Although it was suggested that the husband had continued to maintain the [Northern suburbs] property since separation, there was no evidence of what he had done other than that he had lived in the property. In fact, he has had the benefit of rent-free occupation of the house, whereas the wife has had to obtain her own accommodation.

40 Both parties have increased their superannuation entitlements to a modest extent since the date of separation.

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Assessment of contributions

41 The overwhelming initial contribution was made by the husband. I find that he brought in assets to a value of a little more than $373,000, including his superannuation (and after allowing for the fact that portion of his inheritance was expended on the improvement of the two properties). The wife brought in assets worth a little more than $7,000.

42 The husband made a greater financial contribution than the wife during the relationship. On the other hand, the wife made the greater domestic contribution and she also made a greater contribution to the physical work associated with the redecoration of the [Northern suburbs] home and the improvement of the garden. There was no evidence of the impact of this work on the value of the property, save to say that it is common ground the property increased in value by around $100,000 in the year or so from when the property was acquired to when it was first valued soon after separation. Some of this increase would have been attributable to market forces; however, given the extent of the work done around the property, I am satisfied much of it was due to the significant funds expended on improving the property and the work done in effecting those improvements. The husband claimed he expended $64,000 on improvements, but included in that total were some items that were not improvements to the property itself. Having considered the documents provided by the husband’s solicitors after the first part of the trial (by consent), I find that the husband’s expenditure on improvements to the property itself would have amounted to a little less than $50,000.

43 The parties had only one joint investment – the [block of land] – on which they made a modest profit; however, the husband provided most of the funds that were put into this property.

44 The husband did pay almost all of the costs of the wedding and the honeymoon. It must be remembered, however, that the husband was well aware the wife was impecunious and could never have afforded the costs which he chose to meet at the time of their wedding. I have difficulty in seeing how it would be just and equitable for him to obtain some benefit now for having funded these discretionary costs. It needs also to be kept in mind that s 79(4) of the Act directs the Court to take into account contributions made “to the acquisition, conservation or improvement of any of the property of the parties to

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the marriage or either of them”. The contributions the husband now wants me to take into account (save perhaps for the acquisition of the rings) were not contributions to property at all – on the contrary the expenditure was incurred knowing it would significantly deplete the available property. Things might have been different if the parties were in similar financial positions at the time and decided to have an expensive wedding, which by chance (or agreement) was funded from one party’s bank account. In such circumstances the party who met the costs might reasonably argue they contributed to the conservation of the other party’s property by relieving them of the obligation to meet their share of an expense they had agreed to incur jointly. This, however, cannot be the case where one party is effectively a pauper.

45 As for the acquisition of the rings, I am not satisfied this is a matter to be taken into account for the reasons enunciated in Samson v Hanna [2000] FamCA 1875. In any event, the rings have had to be sold for a fraction of what was paid for them.

46 The husband sought a finding that the wife had contributed to the extent of 5% of the asset pool. This would amount to a little more than $21,000 if the pool were to be struck as at the time the trial commenced – or a little more than $27,000 if the increase in the value of the home was taken into account. Given that the wife brought in only $7,000 and that the period during which the wife was making her contribution was very short, I accept the husband’s submission that the wife’s contribution should be quantified at 5%, provided that the assessment is applied to the asset pool as it exists now.

Adjustment for section 75(2) factors

47 This was a very short relationship. The parties spent some time living in the same house from about February 2002 to January 2003, but only lived together full-time from January 2003 to October 2003.

48 The husband has substantially greater assets than the wife, however, this was also the case at the time the parties commenced cohabitation.

49 The wife is significantly younger than the husband and therefore, putting to one side the health issues, has a much longer period in which to earn income and try to make some provision for her retirement. Nevertheless, even if the wife could return to her former work, I find she would be likely to earn only in the region of $13 per hour.

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50	The parties’ superannuation entitlements have already been taken into account in determining the extent of the pool of assets, but in addition to his superannuation entitlements the husband does have a service pension of about $389 per week, which provides him with added security. His entitlement to this pension arose long before meeting the wife.
51	The husband has no obligation to support any person other than himself. The wife must support not only herself but also [M], for whom she has never received child support – and presumably never will. The wife has some social security entitlements amounting to about $413 per week.
52	The wife has unpaid legal costs amounting to about $12,000. Her present solicitor indicated that he may waive his fee if she is not “successful” in her claim. I can only presume, however, that if the wife does receive some form of settlement, she will end up having to pay her solicitor at least something towards the costs that have been incurred.

Wife’s health and earning capacity

53 In March 2003, soon after the marriage, the wife was admitted to hospital after suffering what was later diagnosed as an epileptic seizure. She was off work for a couple of weeks. Since then she has had a number of seizures, including one just before the trial resumed in July 2006. She has been off work since the beginning of 2005 and underwent brain surgery in May 2005.

54 The wife approached her former employer in August 2005 and asked for her job back. She assured her employer she was fit for work again and he thought she looked fit and healthy and ready for work. She was offered a position similar to her previous job, but she did not take it up because she did not like the location of the new appointment. In any event she later had further seizures and would not have been able to continue working, even if she had taken up the position offered.

55 Having considered the evidence of [Dr S], I conclude:

• The wife has been experiencing epileptic and stress related seizures and has been seriously depressed;

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• There is insufficient evidence to conclude that her epileptic condition was caused or brought on by the husband’s behaviour towards her;

• There was an 80% or better chance, with appropriate medication, that the epileptic seizures would be controlled within a year of the date on which [Dr S] gave his evidence (i.e. by the middle of 2007);

• If the medication regime does not bring about the desired results, further surgery may be required;

• Regardless of the impact of the medication, there is a distinct possibility that the wife will continue to have the stress related seizures which she has experienced.

56 I concluded that it would be highly unlikely that the wife would have any regular employment until at least the middle of 2007. Thereafter, I find the wife will either find it impossible or very difficult to obtain and keep regular employment. If she fails to inform a prospective employer about her health history, she may be able to find some form of unskilled work, but as soon as she has a seizure (which would be a likely event), the chances are that her employment will be in serious jeopardy. Whilst I considered [Dr S] to be an expert witness in whom I could repose the utmost trust, I was inclined to think that he was unduly optimistic concerning the level of benevolence the wife could expect from employers. Even if the wife does obtain employment, it is likely to be at a very low rate of pay.

57 I placed little or no weight on the fact that the wife very recently went back seeking work from her old employer, appearing “very cheerful and bubbly” and saying she has recovered from her illness. The wife must be in a desperate financial position and I suspect she would have simply been “hoping for the best” so that she can earn a little income to support herself and her daughter. It should be remembered that in his earlier affidavit, the employer had also said the wife had come back seeking work in August 2005, looking “bright and cheerful” and confirmed that she was physically fit for work. I have no doubt that is how she presented, but she soon thereafter had further seizures.

58 It is also of interest that the employer said nothing in his most recent affidavit about whether or not the wife would, in fact, be employed without a medical clearance. The earlier affidavits made

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clear that in August 2005 the wife was quizzed about her ability to produce a “Fitness to Work Certificate” and I would be very surprised if the employers, knowing what they now know of the wife’s problems, would, in fact, offer her work without a medical clearance. (I must pause to note that it also seems more than a little surprising that the wife’s former employers have been prepared to volunteer what might be perceived as confidential information concerning the wife to the husband’s solicitors.)

59 I intend to proceed on the basis that there is a distinct possibility the wife will never work again, and that if she does work she will be paid at the lowest rates of pay. I also intend to proceed on the basis that it is most unlikely the wife will be able to pursue the courses of study she hoped might lead to better employment prospects. I will also proceed on the basis that she is likely to be able to obtain free medical care, but will have to pay at least $15 per month on medication.

Husband’s health

60 The husband’s state of health was originally not an issue, save for the fact that it seems he suffered from Post Traumatic Stress Disorder, for which he had been seeing a psychiatrist.

61 The husband’s health deteriorated as the proceedings progressed. He was diagnosed with moderately severe interstitial pneumonitis in 2005. This diagnosis was confirmed by a biopsy undertaken in June 2006. His condition has now deteriorated further. The most recent prognosis is that he will need a lung transplant, although this will not be required in the short term. Whilst the husband can continue in his present work for the time being, he may have to leave work fairly soon. It is likely he will then be out of work for a period of time prior to having the transplant and he will then be out of work for a further period of up to three months or more after the transplant. There was no evidence to indicate whether the husband has any accrued sick leave entitlements.

62 Given the husband’s age and state of health, I intend to proceed on the basis that he is fast approaching the end of his working life.

The impact of the restraining order

63 A further matter I consider should be taken into account relates to the impact of the ex parte restraining order the husband obtained at the

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time of separation. It seems to me to be exceedingly unfortunate that the wife and [M] were forced out of their home (and the wife forced out of her job) on the uncontested and uncorroborated evidence of the husband. The husband presented as an extremely gruff and fairly aggressive gentleman. He is much larger than the wife and a former member of the [Services]. I have no doubt that the wife was far more in fear of him than he was ever in fear of her.

64 I consider it likely the husband obtained the restraining order based on exaggerated claims. The upshot was that the wife had to find somewhere else to live, when she could otherwise have stayed in the home pending resolution of the parties’ financial affairs. The further consequence was that the wife ended up being able to work only one day a week for some time, instead of the previous four (and more) days a week. The financial loss to the wife was not as great as was at times suggested (her case being initially run on a false premise that her income had been $750 per week when it was $750 per fortnight). Nevertheless, she did suffer a decline in income from early October 2003, when the order was made, until February 2004, when she secured a 65 hour per fortnight contract at an income of $12.83 per hour. The evidence was not entirely clear as to how much income she lost, but I find she would have lost about $250 per week gross for a period of about four months. The net cost would have been a little less, as she would have had to pay a modest amount of tax. Nevertheless, the income foregone as a result of the husband’s unwarranted behaviour in obtaining the restraining order would have exceeded $4,000.

Lost opportunities

65 The wife had been living in her state housing accommodation for 14 years before the marriage. She said she kept paying the rent on the property for four months after the marriage because she still hoped to be able to purchase the property. I can take judicial notice of the fact that tenants in state housing accommodation are, on occasions, permitted to acquire a legal interest in the property. However, the wife’s case, if she had one on this point, was not sufficiently well developed for me to be able to conclude anything more than that the marriage caused the wife to give up subsidised housing and, having done so, now finds herself in a much worse position because she has to pay rent in the private rental market. She currently pays $200 per

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week in rent, whereas before the marriage, she had to pay only half
that amount.

66 The wife was not cross-examined on her further claims that:

• she had made an offer on a privately owned unit in [the suburbs] a few months before the marriage, as she wanted the security of owning her own home;

• the husband was angry with her for having make the offer and threatened to end the relationship if she went ahead;

• she then withdrew the offer.

67 In the course of her oral evidence the wife went further and claimed her loan application to purchase this property had been approved and a settlement date was set.

68 On the other hand, the husband was not cross-examined on his claim that the wife told him that she had been unsuccessful in seeking finance to acquire the [suburban] unit.

69 Given my lack of faith in the credibility of either party, I was unable to determine the true facts relating to the [suburban] unit. It does seem somewhat unlikely, however, that the wife would simply be able to withdraw an offer on a property on which she not only had finance approval but also a settlement date. It also does not seem at all improbable that the wife would have been refused finance to buy a property, given that she had next to nothing and only a very low income.

70 This was potentially quite an important part of the wife’s case, since if her version of events was correct, she missed out on the chance to participate in what has turned out to be an unprecedented boom in the property market. There would have been documents in existence relating to this proposed purchase if it had reached the advanced state the wife claimed. If the wife wanted me to take this matter into account, she should have been more thorough in the presentation of her case. In the circumstances, I cannot conclude that the wife actually had the opportunity to acquire the property in question.

Assessment of s 75(2) factors

71 I conclude that there is a strong likelihood the wife will spend much of, if not all of, the rest of her life living on social security or in

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receipt of a very low income, whilst struggling to provide accommodation for herself and [M]. I also conclude that the husband is coming near to the end of his working life and will spend much of the rest of his days managing on his veteran’s pension. The future for both parties looks bleak, but the husband has much greater security because he now has substantial equity in the home.

72 Although this was a short marriage, and the wife’s health problems cannot be related to the marriage, I nevertheless consider that more than a nominal adjustment is required for s 75(2) factors, especially given the impact the marriage has had on the wife’s capacity to access low cost rental housing. I have therefore determined that there should be a s 75(2) adjustment of 12.5% of the asset pool (assessed on the current value of the [Northern suburbs] home).

Just and equitable

73 As the final step in the process, I am required to step back and consider whether the outcome, after assessment of contributions and s 75(2) factors, is just and equitable.

74 The husband came to the marriage with significant assets. There has only been a fairly modest increase in the value of the asset pool, notwithstanding that the value of the husband’s real estate holdings has increased significantly. This is attributable in small part to the fact that some of his mother’s inheritance was spent on improving the [Northern suburban] property. It would otherwise seem to be attributable to him having expended a good deal of money on the wedding and honeymoon, on the acquisition of new furniture and on purchasing motor vehicles, none of which have held their value.

75 The wife came to the relationship with assets of very modest value. Although she made a significant contribution during the period of the relationship, this was over a very short period of time. Although the wife undoubtedly has poor health and bleak prospects, I must keep in mind the brevity of the relationship and the fact that the husband’s health is also poor and he is near the end of his working life.

76 Taking all these matters into account, I consider that an outcome where the wife receives 17.5% of the assets is just and equitable.

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Orders

77 In making my orders, I must take into account the fact that the wife has already received the proceeds of sale of the [block of land] as a result of the interim order I made at the end of the first part of the trial.

78 I have not overlooked the fact the wife has sold her rings for what she could get in order to make ends meet. Nor have I overlooked the fact she took with her the car which the husband purchased for her during the relationship. This appears to have been traded in on the car she presently owns, which is worth roughly what is owed on it. I do not propose to treat the car as being an advance payment of the wife’s settlement. In making this decision, I have taken into account, amongst other things, the fact that the husband has provided no support to the wife during the long period of separation.

79 I consider it appropriate each party should meet their share of the capital gains tax on the sale of the [block of land].

80 For these reasons I propose making the following orders:

1. The husband transfer to the wife all his right, title and interest (if any) in the following:

(a)	The proceeds of sale of the [motor vehicle] and the wife’s wedding and engagement rings;
(b)	The net proceeds of sale of the property at [the block of land in a nearby suburb];
(c)	All sums at the credit of any bank account or other financial account in the name of the wife;
(d)	The superannuation entitlements held in the wife’s name;
(e)	The furniture, contents and personal effects in the wife’s possession as at the date of these orders.

2. The husband pay to the wife the sum of $78,135 within 60 days, upon which payment the wife shall forthwith transfer to the husband all of her right, title and interest (if any) in the following:

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(a)

The property known as and situate at, [the address in the Northern suburbs] in the State of Western Australia;

(b)	All sums at the credit of any bank account or other financial account in the name of the husband;
(c)	The 2003 [motor vehicle];
(d)	The superannuation entitlements held in the husband’s name;
(e)	The furniture, contents and personal effects in the husband’s possession as at the date of these orders.

3.

Each party shall be responsible for their individual portion of any capital gains tax payable as a consequence of the sale of the property [the block of land].

4.

The wife have liberty to apply to the Court for an order for sale of the [Northern suburban] property in the event the husband defaults in payment of the settlement sum.

5.

Pending payment to the wife of the settlement sum the husband shall be restrained and an injunction is hereby granted restraining him from selling, encumbering or charging or in any other way dealing with his interest in the [Northern suburban] property, save to obtain funds to discharge his obligations pursuant to these orders.

6.

The Application and Response be otherwise dismissed.

I certify that the preceding [80] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate