Sackman and Sackman

[2020] FCCA 452

FEDERAL CIRCUIT COURT OF AUSTRALIA

SACKMAN & SACKMAN [2020] FCCA 452

Catchwords:
FAMILY LAW – Property settlement – 32 year marriage which produced 2 children – consideration of contributions and future factors – just and equitable outcome.

Legislation:

Family Law Act 1975 (Cth), pt.VIII, ss.75(2), 79(4)(d), 79(4)(f), 79(4)(g) 80, 106A

Cases cited:

Hickey & Hickey & Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Stanford & Stanford (2012) FLC 93-518

Applicant: MS SACKMAN

Respondent: MR SACKMAN

File Number: NCC 593 of 2017

Judgment of: Judge Betts

Hearing date: 7 February 2020

Date of Last Submission: 7 February 2020

Delivered at: Newcastle

Delivered on: 3 March 2020

REPRESENTATION

Counsel for the Applicant: Mrs Kearney

Solicitors for the Applicant: Paton Hooke Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Self-represented

ORDERS

1. Pursuant to section 80 of the Family Law Act 1975 (Cth), forthwith the wife be appointed as sole trustee for the sale of the parties’ real property situated at A Street, Suburb B (“A Street, Suburb B”), and described as the whole of the land in title reference. To facilitate this order the wife will be entitled to:

   a)select a real estate agent of her choosing (“the Agent”) to market and sell A Street, Suburb B and sign a Listing Agreement;

   b)select a conveyancer/solicitor of her choosing to have carriage of the sale (“the Conveyancer”);

   c)list A Street, Suburb B for sale by private treaty at the earliest possible date at a price determined by her under the written advice of the Agent;

   d)make A Street, Suburb B available for inspection to prospective purchasers at all reasonable times; and

   e)sign all documents as requested by the Conveyancer having carriage of the sale once an offer has been accepted.

2. Should A Street, Suburb B remain unsold after a period of two (2) months from the date that A Street, Suburb B is listed for sale in accordance with Order 1 above, then the wife be appointed as sole trustee to list A Street, Suburb B for sale by auction and will do all acts necessary to effect the auction and in particular shall:

   a)appoint an auctioneer as nominated by the Agent (“the Auctioneer”);

   b)set a reserve price at a price determined by her under written advice of the Auctioneer/Agent;

   c)make A Street, Suburb B available for inspection to prospective purchasers at all reasonable times;

   d)sign all documents as requested by the Agent, the Conveyancer or the Auctioneer; and

   e)attend the auction as requested by the Auctioneer/Agent.

3. Forthwith and until A Street, Suburb B is sold and settled:-

   a)The husband shall be solely liable to keep up-to-date and pay on time, all outgoings on A Street, Suburb B including but not limited to land tax, council rates and water rates and any other liabilities secured against the title to A Street, Suburb B.  If he fails to do so, any outstanding arrears and/or liabilities paid out at the settlement will be deducted in full from the husband’s share of the sale proceeds and paid to the wife in full as part of her share of the sale proceeds;

   b)The husband is responsible for ensuring that A Street, Suburb B is kept in a clean and tidy condition as may be directed in writing by the Agent for the purposes of inspections and fulfilling the parties’ contractual obligations owed to the incoming purchaser/s.  If he fails to do so, order 5 of these orders will come into effect and any costs incurred by the wife to engage professional contractors to ensure A Street, Suburb B is appropriately presented to prospective purchasers and/or ready for settlement, will be deducted in full from the husband’s share of the sale proceeds and paid to the wife in full as part of her share of the sale proceeds;

   c)The husband is restrained, and an injunction shall issue prohibiting him from incurring any debts or charges (secured or unsecured over A Street, Suburb B) that may reduce the sale proceeds otherwise achieved from the sale of A Street, Suburb B.  If he does incur any such debts or charges which are paid out at the settlement, then such amounts will be deducted in full from the husband’s share of the sale proceeds and paid to the wife in full as part of her share of the sale proceeds.

4. For the purposes of ensuring the sale of A Street, Suburb B, the parties are to ensure that the Agent receives a full set of keys to the property and they will comply with all reasonable directions of the Agent to permit inspections by prospective purchasers including (if requested) that they not be present at or within the immediate vicinity of A Street, Suburb B at the time of such inspections occurring.

5. Noting that the husband is living at A Street, Suburb B, should the wife receive written advice from the Agent/Auctioneer to the effect that the husband has failed to comply with orders 3(b) or 4 above (‘the Written Advice’), then:

   a)on fourteen (14) days written notice to the husband (which will include a copy of the Written Advice);

   b)the wife will have liberty to apply to the Chambers of his Honour Judge Betts, without further notice to the husband, for a Warrant of Possession to issue in the form which is attached to these orders and marked as “Annexure A”;

   c)the wife’s application is to be supported by an affidavit of service and a copy of the Written Advice from the Agent/Auctioneer;

   d)and in the event that a Warrant issues the husband is to pay the wife’s costs fixed in the sum of $627 (GST inclusive) in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) together with the costs of enforcement by the enforcement officer.

   (It is noted that this order needs to be read with order 7 below).

6. To give “written notice” to the husband in accordance with these orders, the wife shall mail any correspondence to the husband by pre-paid registered post, addressed in the husband’s name at A Street, Suburb B, NSW.

7. If the husband opposes the Court issuing a Warrant of Possession pursuant to order 5, he is to file an serve an affidavit deposing to the reasons for his opposition, and any proposals he makes in respect of any alleged default on his part, with such affidavit to be filed and served no later than seven (7) days after the date of the “written notice” referred to in order 6.  To avoid confusion, the seven (7) day time limit runs from the date of the notice not the date of receipt.  (It is noted that pursuant to order 5, the husband will have already had 14 days’ notice of any alleged default.)

8. In the event of a re-listing pursuant to order 7, the question of the wife’s costs will be at large and order 5(d) will not apply.

9. On the sale of A Street, Suburb B pursuant to these Orders, the sale proceeds will be disbursed in the following manner and priority:

   a)payment of the Agent’s commission and advertising expenses and legal expenses of the sale;

   b)To pay to the wife 42.5% of the net balance of the sale proceeds plus any additional payments pursuant to order 3, order 5 or order 8 (together with default interest as calculated pursuant to rule 21.08 of the Federal Circuit Court Rules 2001) as may be applicable;

   c)By consent, to pay to the wife the sum of $550 being the wife’s half share of the single expert valuation report;

   d)To pay to the wife any other costs amount that may be ordered in these proceedings;

   e)To pay to the husband 100% of the balance.

10. By consent, within fourteen (14) days of the date of these orders, the husband shall deliver to the wife’s solicitor all framed photos of the children currently remaining in the husband’s possession depicted in exhibit 1.  If requested in writing to the wife’s solicitor, the wife will make a digital copy of the photographs and mail same to the husband by pre-paid registered post to his nominated address.

11. The husband is declared to be solely liable for any debt owed to his brother Mr C and shall indemnify the wife forthwith.

12. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

    a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;

    b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

    c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

    d)All insurance policies are to become the sole property of the owner named hereon;

    e)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

    f)Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

13. The wife and husband will do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

14. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

15. The court will hear the parties on the question of costs for the purposes of order 9(d). 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 593 of 2017

MS SACKMAN

Applicant

And

MR SACKMAN

Respondent

REASONS FOR JUDGMENT

Introduction:

1. Following the breakdown of their thirty-two (32) year marriage, the applicant Ms Sackman (“the wife”) and the respondent Mr Sackman (“the husband”) have been unable to agree on a property settlement.

2. The major obstacles are the parties’ respective ages and the nature of their asset holdings.   The husband is seventy-eight (78) and the wife is sixty-one (61).  Their only substantial asset is their former matrimonial home at A Street, Suburb B, an acreage property which the parties purchased in 1990.  Since the wife moved out in November 2017, the husband has continued to live there.  

3. The wife seeks that it be sold.  The husband opposes a forced sale.  With evident emotion, he tells the court that he wishes to live out the rest of his life there.

4. The husband’s proposal is that the wife transfer A Street, Suburb B from joint names into his sole name so that he can subdivide A Street, Suburb B into two (2) separate lots.  One lot would have the home on it (which he would retain) and the other lot could be sold to pay the wife her property entitlement.

5. The wife disagrees.  The proposed subdivision is not straightforward; although a development approval is in place it faces numerous practical and financial difficulties that have not yet been overcome.   The wife sees the proposal as unrealistic and leading to further delay.  While she does not particularly want to see the husband out of the home, like any divorced spouse she is entitled to a just and equitable property division.  She is tired of waiting. 

Short chronology:

1. The husband was born in the Country F in 1941, moved to Australia in 1960 and obtained citizenship in 1962.  Prior to marrying the wife, he has been married twice before and he had had three (3) children to his first wife.

2. The wife was born in the Country G in 1958.  She had never been married before.  After a brief courtship, she and the husband married in the Country G in 1985.  The wife moved to Australia to join the husband on his farm some six (6) months later.

3. There are two (2) children of the marriage:

   ·    their daughter Ms H born in 1986;

   ·    their son Mr J born in 1988.

4. The husband’s youngest child (Mr Sackman junior) lived with the parties for the first few years of the marriage, assisting on the farm prior to its sale in 1989.

5. Following sale of the farm, the parties travelled for a while before purchasing A Street, Suburb B.  The husband formally instituted divorce proceedings in 2017 after some years of estrangement under the one roof and the wife left A Street, Suburb B not long after.

These proceedings:

1. The wife commenced these proceedings on 5 July 2018.  

2. In the course of the proceedings, various orders and directions have been made including for the appointment of a single expert valuer for A Street, Suburb B.

3. On 7 February 2020, the matter proceeded to final hearing.  At that hearing, the wife was represented by Mrs Kearney of Counsel and the husband was self-represented. 

4. The wife relied upon the following documents:

   a)   Amended Initiating Application filed 17 January 2020;

   b)     Her trial affidavit filed 17 January 2020;

   c)   Her Financial Statement filed 17 January 2020;

   d)     Affidavit of Mr D, single expert valuer, filed 31 January 2020; and

   e)   Case Outline Document filed 7 February 2020.

5. The husband relied upon:

   a)   His trial affidavit filed 16 January 2020;

   b)     His Financial statement filed 16 January 2020.

6. Each party tendered various documents as exhibits.  These will be referred to as relevant.

7. Each of the parties was cross-examined.  While they were both quite emotional at times, I thought that each of them did their best to give accurate evidence.  Each made appropriate concessions.

The law:

1. These proceedings are governed by the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. I intend to adopt the following approach:

   a)      Firstly, I will identify and value the property, liabilities and financial resource of the parties;

   b)      Secondly, I will consider whether it is “just and equitable”  to make a property settlement order;

   c) Thirdly, I will identify and assess the respective contributions made by each of the parties towards the net assets as required by s 79 of the Act;

   d) Fourthly, I will identify and assess the relevant “future factors” set out in s 75(2) of the Act. I will also consider any relevant matters arising pursuant to s 79(4)(d), s 79(4)(f) and s 79(4)(g). Having done so, I will then determine whether such matters warrant an adjustment to each party’s respective contributions–based entitlement, and if so then what adjustment. In this context, I will be mindful of not only percentages (which are often a convenient tool for the court) but also of the underlying dollar figures that the percentages represent (which are the practical consequences to the parties);

   e)      Lastly, I will consider the effect of my findings and proposed orders so as to satisfy myself that any proposed order I am contemplating is “just and equitable”. [1]

   [1] The pathway I am adopting is primarily based upon that endorsed in the Full Court in Hickey v Hickey & Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted by me to take into account the High Court’s decision in Stanford v Stanford (2012) FLC 93-518.

Step 1 – identifying and valuing the matrimonial property:

1. In the course of the trial, the parties ultimately agreed that the only relevant assets were the A Street, Suburb B property valued at $700,000, and the wife’s Super Fund E valued at $77,825. [2]

   [2] Balance is as at 03/01/20

2. If A Street, Suburb B was subdivided into the two (2) lots contended for by the husband, it would have a combined value of $930,000. This comprises:

   a)      Proposed Lot 1: with the house on it, being 9,183 square metres and valued at $480,000;

   b)      Proposed Lot 2: vacant land with an approximate land area of 3.1358 hectares and valued at $450,000 – on the assumption that a dwelling could be built on it. [3]

   [3] Affidavit of Mr D filed 31/1/20.

Step 2 – considering whether it is “just and equitable” to make a property settlement order:

1. In its decision of Stanford & Stanford (2012) FLC 93-518, the High Court held that this court is not to make any property settlement order pursuant to Part VIII of the Act unless doing so would be “just and equitable.”

2. This was a lengthy relationship involving intermingling of assets.  It produced two (2) children, now adults.  The relationship having failed, A Street, Suburb B remains in the parties’ joint names but they are not both able to enjoy its common use.  

3. Both parties seek a property settlement order, albeit on different terms.  

4. In the circumstances I am comfortably satisfied that it would be “just and equitable” to make a property settlement order.

Step 3 – assessing the respective contributions of the parties:

1. I propose to assess contributions in a broad-brush manner.

Initial financial contributions:

1. When the parties married, the husband was 43 and the wife was 26.

2. The husband was living on his farm and caring for Mr Sackman jnr. 

3. The husband was at that stage embroiled in property settlement proceedings with his second wife.  The best evidence as to the value of the husband’s assets is to be found in the reasons for judgement of Tonge J in those proceedings.  The reasons, dated 18 December 1985, are helpfully annexed to the husband’s affidavit. 

4. His Honour records that the farm had a net value, after deduction of the mortgage, of $117,762.  It also carried stock valued at $26,300 and used plant and equipment valued at $16,850 – the total assets being $160,912.  

5. The wife had no assets of any substance.  She was living with her parents and working as a customer service officer.

6. Initial contributions entirely favour the husband.  His assets provided the financial ‘springboard’ for the parties during their marriage.

Contributions during the early years of the relationship:

1. When the wife first came to Australia in mid-1985, times were relatively tough.  The husband was focussed on paying down debt and was living frugally - Tonge J observing that the husband had been “unusually modest in his personal drawings from the farm”.

2. The wife immediately set to work as a homemaker and assisting on the farm.  Soon after, she started to be paid a modest wage on the accountant’s advice.  She also helped look after Mr Sackman jnr, who she saw more as a little brother than a stepson given their respective ages.

3. Tonge J ordered that the husband pay his second wife the sum of $40,000, together with her costs fixed at $1,500.  By the time the husband paid his own costs, the whole exercise depleted the husband’s resources by some $51,000 or thereabouts. 

4. At that point the husband was very much in charge of the finances.  The wife assisted at the farm and became the primary carer for each of the children when they came along – Ms H in 1986 and Mr J in 1988.  

5. The husband did assist in the parenting duties.  In the early stages of the marriage the wife did not have a licence so the husband had to do the driving to doctors and the like.

6. By 1987, Mr Sackman jnr had moved out.

7. The farm income was relatively modest.[4]

   [4] See paragraphs 65 & 66 of the wife’s affidavit

8. At some stage, with a view to making extra money, the husband subdivided three (3) blocks of land off the farm.   He deposes that those blocks had in fact been subdivided prior to the marriage. [5] But if that were so, then logically they would have been relevant assets at the 1985 trial.  Those blocks of land are not referred to in the reasons of Tonge J, I therefore infer that the farm had not at that stage been subdivided.  The subdivision probably occurred not long after.  The exact timing probably does not matter much.

   [5] Paragraph 21 of the husband’s affidavit.

9. Around 1989, the husband sold the farm on a ‘walk-in, walk-out’ basis for $380,000.  After payment of the debts, commissions and sale costs he netted $331,500.

1. The parties used some of these monies to travel to the Country G and to Country K over the following year.

2. In 1990 the parties jointly purchased A Street, Suburb B, using the farm moneys.

The 1990s:

1. The husband obtained various casual jobs but did not return to the full-time workforce.  Over a six (6) month period in late 1993/early 1994, he sold off the three (3) subdivided blocks of land.  In cross-examination he conceded that he netted $15,000 - $20,000 each for two (2) of the blocks and $7,500 - $10,000 for the remaining block. [6]

   [6] The figures in his affidavit were higher; he accepted that the affidavit figures were incorrect

2. By the mid-1990s the husband had started receiving a mature age allowance from Centrelink.  Aside from casual jobs he also “tinkered”, doing various odd jobs and projects to earn money, including selling scrap metal.

3. In 1996/1997 the wife received a lump sum of $8,000 - $9,000 net arising out of a motor vehicle accident.  Those moneys were used for the benefit of the family.

4. By this time the children were a little older and the wife was keen to gain qualifications and earn an income.  She wanted the family to have a more financially comfortable lifestyle.  She was interested in initially studying for a TAFE certificate.

The 2000s:

1. In 2001 the wife started studying.  She received Austudy benefits; she accrued a HELP debt.

2. During her studies, the wife obtained various casual and temporary positions.  But to put it into perspective, the family were still mainly reliant upon Centrelink benefits.  Their daughter Ms H was receiving discounted fees at the local Catholic High School.

3. In 2006/2007 the husband went on a three (3) month holiday around the world with his brother Mr C, who around that time loaned the parties some $50,000.  Some $28,000 was on account of the husband’s holiday costs and the other $22,000 was paid as cash to the husband. [7]

   [7] See annexed “Loan Agreement” at page 15 of the husband’s affidavit.

4. The husband made some repayments to Mr C over the succeeding years – but at trial the evidence as to the current amount owed was conflicting, the limitation period seemed to have expired, and the husband ultimately abandoned the debt as a Balance Sheet item.

5. The wife graduated with a degree in 2010.  Her degree had taken somewhat longer than usual because she suffered depression over that period.

The 2010s:

1. Having graduated in 2010, the wife went on to obtain employment as a professional with the Employer L.  She was offered an ongoing position in 2011, at a starting salary of $58,249.  At trial, the husband referred to her new-found income as like “winning the lottery”.  By inference this was a much higher income than the family was used to.

2. As a couple, the wife’s new-found financial independence proved bittersweet.  

3. The husband’s Centrelink benefits, and his modest Country F pension, immediately ceased.  In one fell swoop, he was financially dependent on the wife.  

4. Until that point, the parties had always kept their bank accounts separate.  Though they had met their various living expenses, they had not had a joint account per se.

5. Now, some twenty-five (25) years into the marriage, the husband wanted the wife to deposit her wages into a joint account.  She refused to do so, telling him to “stop being difficult”.  Instead, she gave him an allowance to live on.  Additionally, she took over the bulk of the parties’ living expenses, including outgoings for A Street, Suburb B.[8]  She also met some holiday expenses for the parties.

   [8] See for example exhibit 2.

6. The husband felt aggrieved that the wife was not “sharing” in her income.  Around 2012, he applied for a Centrelink pension on the basis the parties were “separated”, even though they continued to live together and the wife was subsidising their living costs.  In the witness box, the husband admitted his Centrelink claim was not legitimate and that he was nagged with guilt over it.

7. The parties continued their increasingly uneasy cohabitation over the next several years. The husband bought and sold a caravan, without reference to the wife.  They undertook some renovations on the home, funded by the wife but the husband assisted with some of the labour.

8. The wife started to travel alone on holidays; at least part of the reason she went alone was because the husband was concerned about Centrelink potentially finding out that they were still “a couple” if they holidayed together.

Contributions after the wife left A Street, Suburb B:

1. When the wife left A Street, Suburb B, the husband retained the furniture and other items in the home, save for a leather lounge set.

2. The wife initially “couch surfed” for a few months, before obtaining some rental accommodation.  She paid for a household’s worth of fresh furniture including beds, fridge, washing machine and the like. 

3. The husband has had the sole use of A Street, Suburb B.  He has taken over payment of the property outgoings including rates, insurances and various other expenses for the property.

Overall assessment of contributions:

1. This was a long relationship in which each party made significant contributions – financially, as a homemaker and as a parent.  In the earlier part of the marriage, the husband was the primary breadwinner and in the latter part the wife was.  Both made parenting and homemaking contributions throughout, the wife’s contributions being greater.

2. The husband has had the benefit of living in the home post-separation.

3. There are numerous minutiae that in my view do not much matter.  These include the wife sending modest amounts of money to her family from time to time; the husband buying a motorbike for the wife’s family to help them with a business in the Country G; the parties paying for the wife’s mother to stay with them on two occasions in the early 1990s.

4. In the end, weighting of contributions is described as an art rather than a science.  I consider that, overall, the husband’s initial financial contribution – which can be directly traced to the A Street, Suburb B property – warrants an overall assessment of contributions as to 52.5% to the husband and 47.5% to the wife.  In my view this assessment gives proper weight to the myriad contributions each has made.

What about the superannuation?

1. The husband has no superannuation.

2. The wife’s present superannuation entitlements ($77,825) are a direct result of her joining the workforce in the early 2000s, particularly after 2010 when she became a full-time employee.

3. The wife re-trained herself during the marriage and she has paid down the associated HELP debt.  But it would be artificial to assess that the husband made no relevant contribution.  He supported her to study and work by undertaking some homemaking and parenting tasks. 

4. The husband did not seek any splitting orders in relation to the wife’s superannuation.  When the court raised the possibility of a splitting order in submissions, the wife objected on procedural fairness grounds given the way that the case had been run.

5. In my view, the appropriate and safest course is to deal with the wife’s superannuation entitlements in the context of the “future factors” in s 75(2).

6. In conclusion, I proceed on the basis that the parties respective contributions based entitlements are:

   a)      Wife = $332,500 (A Street, Suburb B equity) plus $77,825 in Superannuation;

   b)      Husband = $367,500 (A Street, Suburb B equity).

Step 4 – identifying and assessing the “future factors”:

1. I have set out the parties’ asset positions earlier.

2. The husband is 78 years old and has compromised health.  Realistically he will be dependent upon Centrelink benefits, supplemented by a very modest Country F pension ($37 per week), for the rest of his life.

3. The wife is 61 and her health is also somewhat compromised. These proceedings in particular have caused her particular stress and anxiety.

4. The wife is employed as a full-time professional, earning $99,684 gross per annum.  She thus has a vastly greater income stream then the husband.  On balance, while she will continue to work for as long as she reasonably can, her remaining work life would be relatively short having regard to her age and the stressful and challenging nature of her work.

5. Unlike the husband, the wife has a superannuation fund, although it is quite modest.  She is not going to be able to live off her superannuation fund in retirement for any serious length of time, but those moneys will come in very handy for her and will likely be a healthy supplement to any pension she ultimately receives.

6. A Street, Suburb B has to be sold, either in the short term or in 12 months.  In the meantime the wife is obliged to rent.  Once the capital in A Street, Suburb B is “freed up” for the parties, both will have (or be able to have) a home and each should be able to enjoy a reasonable standard of living.  The wife will likely have a capacity to borrow given her income.  The Husband will continue to live frugally as he has always done.

7. During the marriage, the wife’s income and earning capacity increased. 

8. Neither party cohabits with anyone else.  There are no dependent children.

9. The husband seeks orders that would theoretically increase his earning capacity in that he would hope to turn a profit on the proposed subdivision.  But regrettably the subdivision is not a realistic option as will be explained shortly.

10. Overall, I consider that a 5.5% adjustment to the husband out of the equity in A Street, Suburb B is an appropriate adjustment on account of the “future factors”.  On a gross sale price of $700,000 this is a dollar adjustment of $35,000.  But the real figure will be somewhat less taking into account sale and related costs.

11. On this basis the parties would receive:

    a)      Wife = $297,500 (A Street, Suburb B equity) plus $77,825 in Superannuation;

    b)      Husband = $402,500 (A Street, Suburb B equity).

Step 5 – Ensuring a “just and equitable” outcome:

1. On the basis of the above analysis, the husband should receive 57.5% of the equity in A Street, Suburb B and the wife 42.5%, with the wife to retain her own superannuation.

2. But should the sale be deferred as the husband seeks, so as to give him the opportunity to refinance, subdivide A Street, Suburb B and pay out the wife?

3. This is superficially attractive.  It keeps the husband in the home and enables the parties to increase their asset base.  To this end, I had suggested to the parties shortly before the luncheon adjournment that they should perhaps try to reach a settlement with an agreed timeframe.  Alas, on resumption in the afternoon I was told that the parties had been unable to agree.

4. But while I have had regard to the husband’s heartfelt desire to stay at A Street, Suburb B, I find his proposed subdivision unrealistic.  While the relevant development application was approved on 27 August 2019:

   a)      the parties are required to pay an initial contribution to Council of $15,882;

   c)     roadworks are required;

   d)    the property, which presently has a septic system, requires connection to the Council sewer system. 

5. All of these are separate problems.

6. The husband does not have the $15,882 and has asked that the wife pay.  She refuses.

7. The husband’s own evidence is that the proposed road works are “unrealistic” in terms of the amount of work required and the associated expense.

8. Connecting the sewerage to the main council system would be, in the husband’s words, “like putting an elephant on the moon” given the distance and cost involved. 

9. In essence, the husband says that the development conditions cannot be complied with, nor does he think that he should have to comply with them.  He is gearing up for an argument with Council, having engaged his own consultant in the hope of having Council change their mind.

10. All of this comes needs to be considered against the backdrop that the proposed subdivision has been “floating in the breeze” now since around 2010 if not earlier.  Nothing has ever happened beyond the approval. Even if the husband was able to convince the Council to relax its requirements, he would still need to obtain the necessary finance (at age 78) to pay for the necessary works.  There is no evidence that either is going to happen, much less that the block will be sold within 12 months.

11. All of this arises against the background that the subdivision has been floating in the wind for at least several years now – and perhaps even as early as 2007 when Mr C loaned money to the husband.

12. If it was a relatively straightforward matter then the subdivision could have proceeded years ago.

13. In the end, sympathetic as I am to the husband’s circumstances, I do not consider that it would be just and equitable to do anything other than to require that the home be sold immediately. The wife moved out of the property over two (2) years ago. If she was willing to assist in funding the subdivision, then the court would likely take a different attitude. But she is not willing and I can understand why not. She just wants to get on with her life. Section 81 of the Act looms large.

Orders for sale sought by the wife:

1. The wife seeks her immediate appointment as trustee for sale. 

2. Her position is understandable because, while he was in the witness box, the husband said that he would not agree to sign transfer papers for A Street, Suburb B in the event that the court ordered the immediate sale.  He agreed that he would not be letting people into the property, nor would he be tidying it up for prospective buyers. 

3. He said, with heavy emotion, that “if my ex gets pleasure in dragging her husband out of the home, it would make a good TV show.”

4. The husband showed respect for the court throughout the hearing.  Notwithstanding, he effectively gave evidence that he would frustrate the court’s order.  Such evidence I consider is jarringly out of character for the husband.  It reflects his emotion rather than any sense of reason.

5. In the circumstances I consider it is entirely appropriate to appoint the wife as trustee for sale on the basis that the husband is entitled to remain living in the property in the interim, including maintaining it for prospective purchasers as will be required, providing the agent with keys, and generally attending to the upkeep and expenses of the property. 

6. While the form of the wife’s order appears draconian at first blush, it is in fact warranted on the evidence before me.  The husband should be given the opportunity to remain in the property pending its sale and to do what the orders will require of him for an orderly sale.  But if he follows through with his threats, then a Warrant of Possession will in all likelihood be required. 

7. Out of an abundance of caution, the court will provide a mechanism for the husband to ask to have the proceedings re-listed in the event that the wife seeks such a Warrant.

Conclusion and Orders:

1. For the reasons I have given, I am making orders that are generally in the form proposed by the wife.   

2. I specifically note that the husband agreed to reimburse the sum of $550 to the wife being her half share of the single expert valuation report.  He also agreed that the wife could have the various photographs depicted in exhibit 1.  Those orders will also be included.

3. I will hear the parties on the question of costs, noting that the wife apparently seeks costs in these proceedings.  It is appropriate that the parties have the opportunity to consider these reasons before pressing any such application/s.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  2 March 2020