Scott and Scott

[2016] FCCA 1659

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTT & SCOTT [2016] FCCA 1659

Catchwords:
FAMILY LAW – Property – Parties 83 and 91 – 32 year marriage and 30 year post separation period – whether just & equitable to make property settlement orders.

Legislation:

Family Law Act 1975, ss.75, 79

Cases cited:

Stanford & Stanford (2012) FLC 93-518

Applicant: MS SCOTT

Respondent: MR SCOTT

File Number: NCC 1248 of 2014

Judgment of: Judge Terry

Hearing dates: 23 & 24 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Newcastle

Delivered on: 5 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Levick

Solicitors for the Applicant: Mason Lawyers

Counsel for the Respondent: Mr Tregilgas

Solicitors for the Respondent: Ticehurst Foat Lawyers

ORDERS

1. The husband in consultation with the wife shall forthwith do all such acts and execute all such documents required to sell the property known as Property L more particularly described as Lot (omitted) in Deposited Plan (omitted) and in particular shall:

   (1.1)List the property for sale by private treaty with a real estate agent agreed between the husband and the wife and failing agreement with a real estate agent nominated by the President of the Real Estate Institute of New South Wales or his nominee at the request of either party (“the agent”);

   (1.2)Nominate a listing price and in the event that the parties cannot agree the listing price shall be as recommended by the agent;

   (1.3)Give such instructions as are necessary to Mullane and Lindsay for the preparation of a contract for sale and for the contract for sale to be made available to the agent;

   (1.4)Co-operate in every way with the agent in relation to the sale of the property including making the keys available, allowing inspection at times required by the agent and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;

   (1.5)Accept or reject an offer to purchase less than the listing price and in the event that the parties cannot agree accept and act on the advice of the agent;

   (1.6)Execute the contract for sale;

   (1.7)Execute all other documents necessary to complete the sale.

2. On settlement of the sale of the property the proceeds of sale be paid in the following manner and priority:

   (2.1)All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees and auction expenses (including repayment of any such expenses as have been paid by either or both parties);

   (2.2)The amounts required to pay all municipal and water rates outstanding with respect to the property;

   (2.3)The balance then remaining will be divided as follows:

   (2.3.1)50% to the wife or as the wife in writing directs.

   (2.3.2)50% to the husband or as the husband in writing directs.

3. In the event that the property is not sold by private treaty within six (6) months:

   (3.1)The parties shall list the property for sale by public auction with the agent appointed pursuant to Order 1.1;

   (3.2)The reserve price for the purpose of such auction will be as agreed by the parties no later than fourteen (14) days after the property is listed for sale and in the absence of agreement at a price determined by the agent;

   (3.3)If the property remains unsold, the parties shall do all acts and things and sign all documents necessary to relist the property for sale by public auction in three (3) months.

   (3.4)On settlement of the sale of the property the proceeds of sale be paid in accordance with Order (2).

4. Within 28 days of the date hereof the husband shall give the wife access to the Property L property so that she may remove, if they are still there, her desk, sewing machine, electric cooking gadgets, clothes, books, the outside table, Chef Mixer, DVDs (movies), the table and chairs that belonged to her mother and any other belongings personal to the wife which the husband agrees the wife may retain.

5. Each party is otherwise declared the owner of all assets in their possession, registered in their name or under their control.

6. In the event of either party refusing or neglecting to sign within fourteen (14) days after receipt of a written request to do so any documents necessary to put into effect the terms of the orders, the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed to execute such documents in the name of the defaulting party pursuant to the provisions of Section 106A(1) of the Family Law Act 1975 (as amended).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

MS SCOTT

Applicant

And

MR SCOTT

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Scott and Mr Scott are 83 and 91 years old respectively. They married 62 years ago and separated 30 years ago but they are not divorced and have never had a property settlement.

2. The wife seeks property settlement orders and in particular seeks a share of the proceeds of sale of a home in Property L.

3. The husband was until recently living in the home but he is now in aged care and the home must be sold to pay his refundable accommodation deposit.

4. The home is registered in the husband’s sole name. It was his case that the wife could not overcome the “Stanford” hurdle and satisfy the court that it was just and equitable to make property settlement orders and that her application should be dismissed.

5. For reasons which will become clear in the judgment I do not accept this argument and the issue for me is whether as a result of the matters in s. 79(4) of the Family Law Act the wife is entitled to a share in the proceeds of sale of the home.

The evidence

1. The wife relied on her application and financial statement filed on 20 May 2014 and her affidavit filed on 11 April 2016.

2. The husband relied on his response, affidavit and financial statement filed on 24 August 2015.

3. Pursuant to a financial management order made under the NSW Guardianship Act the Public Trustee is the manager of the husband’s estate and has been appointed the husband’s litigation guardian in these proceedings.

4. The husband and wife were both cross-examined.

5. The wife was a satisfactory witness. She gave her evidence clearly and plainly and I am satisfied that she tried her best to honestly recount the facts.

6. The husband gave evidence in a blunt and forthright way and I had no cause to question his capacity to understand the questions he was asked. I do not consider that he made any deliberate attempt to deceive the court but I do consider that his memory of past events, including the date on which he purchased a property at Property N, was less reliable than the wife’s.

Background

1. The husband and wife met in 1950. They married on (omitted) 1954 when the wife was 21 and the husband 29 and they have four children who are now aged between 60 and 56 years old.

2. The parties separated in August 1986 but have never divorced.

3. In August 1986 the wife filed an application for dissolution of marriage alleging that the parties had separated in 1985 which on the totality of the evidence can only have been a separation under one roof. The husband filed a response disputing that the parties were separated. 

4. In due course the wife’s solicitor at the time sent her a letter telling her that the court did not accept that the parties had separated in 1985 and that she should try again later using the date of filing of her application (August 1986) as the date of separation but she never did. 

5. The wife also filed an application for a property settlement in August 1986 but that also lapsed.

6. The significant item of property in 1986 was the former matrimonial home at Property L which was registered in the husband’s name.

7. The husband purchased the vacant land in about 1951 after he and the wife had commenced their relationship. He borrowed the money to do so and the loan was repaid in instalments.

8. The parties disagreed about how long it took to repay the loan. The wife said that it took 4 ½ years and that “we paid the mortgage off as quickly as we could.” The husband said that the loan was paid off in 6 months. The wife was the more reliable witness but it was a long time ago and I cannot resolve this dispute.

9. Prior to their marriage the parties commenced building a garage on the land with bricks they were given from the local brickworks. The wife said that she helped clean the bricks and that the husband (who was a (occupation omitted)) laid them and with this the husband agreed.

10. After they married the parties lived in the partially built garage and gradually completed it.

11. The wife was not challenged about her evidence that her aunt lent her money to put the electricity on and there was no dispute that the husband did the physical work required to connect the electricity with the help of a friend.

12. In 1960 the parties borrowed money from the (omitted) Bank and over the next five years built a home on the land. The wife said and the husband did not dispute that the loan was fully paid out in 1981.

13. In 1982 the parties purchased an investment property in Property W in joint names. I accept the wife’s evidence that she contributed her savings to the purchase. The parties took out a loan for the balance of the purchase price.  

14. The parties sold Property W in 1985.

15. There was no dispute that the husband used $17,000.00 of the proceeds of sale of Property W to purchase a van but there was a dispute about what happened to the balance of the money.

16. The wife said that the husband used $8,000.00 to buy land at Property N in his sole name. The husband said that it went into a joint account. He maintained that Property N was not purchased until about 1990, some years after the parties separated and that he used his own savings to purchase it.

17. The husband is clearly wrong about the purchase date for Property N because it is referred to both in the affidavit the wife filed in 1986 when she applied for a property settlement and in a letter her solicitor sent the husband about property matters in 1986.[1]

    [1] Exhibit C to the wife’s affidavit

18. I therefore consider it more likely than not that the wife is correct and that money from the sale of Property W was used to purchase the land at Property N.

19. After he purchased Property N the husband commenced constructing a home on the property.

20. In 1987 the wife left Property L and began living in a rented unit. I accept her evidence that she went back to Property L on weekends to mow the lawn, feed the pets if the husband was away in Property N and clean.

21. In 1988 the wife returned to live in Property L and she remained there until 1994. During this period the husband lived between Property N and Property L.

22. In 1994 the wife purchased Property A. The purchase price was $145,000.00 and the wife paid for the unit using a $50,000.00 inheritance from her parents’ estate,[2] some of the $15,000.00 she borrowed from her son Mr I, $25,000.00 in savings and a loan of $55,000.00 from (omitted) Building Society. 

    [2] This is a shorthand but accurate way of describing the situation

23. The husband allowed the wife to use Property L as security for the loan of $55,000.00. Why this was necessary is unclear.

24. The wife said that she made the periodic mortgage payments and a lump sum repayment of $50,000.00 in November 1995 with the result that in 1997 the mortgage was discharged. She said that she had the following money available to her to assist her:

    a)Her superannuation of $52,473.21 which was paid to her upon her retirement in September 1995.

    b)An inheritance of $24,609.67 from the estate of her uncle in late 1996.

    c)A further superannuation payment of $3,340.00 received in August 1997.

25. The husband did not accept that the wife had made all the mortgage payments and in particular he claimed that he made the lump sum payment using money from a $90,000.00 superannuation payment he received.

26. The husband provided no evidence that he ever received $90,000.00 in superannuation and no explanation of why he would have received such an amount five years or more after he turned 65 and retired in 1990. The wife on the other hand provided a document which established that she received $52,473.21 from her superannuation in September 1995 and a payment book showing that a lump sum of $50,000.00 was paid off the mortgage in November 1995.

27. I am satisfied on the balance of probabilities that the wife made all the mortgage payments on the Property A unit including the lump sum payment of $50,000.00. I am also satisfied that the husband received at least $20,000.00 by way of superannuation and possibly employee benefits after he retired but I do not know what happened to this.

28. Until 2000 the wife still occasionally slept at Property L but in 2000 the husband sold Property N and returned to live full time at Property L and he thereafter had exclusive occupancy of the property.

29. The wife said that she believed that the husband received $60,000.00 from the sale of Property N. The husband said that he did not make a profit on the property but that does not mean that he did not receive any cash upon its sale. However there was simply no evidence available to clarify what the husband received from the sale of Property N or what happened to the money he did receive.

30. The husband and wife continued to have contact with each other after 2000. The wife helped the husband around the home after he broke his hip in 2000 and she did cleaning, shopping and laundry for him in 2007 and 2008 when he had health problems. She continued to mow the lawn at Property L until 2009.

31. The parties went on an overseas trip together and in 2010 the wife looked into the possibility of obtaining a compensation payment for the husband arising out an incident in World War 11 to assist him to pay for some medical treatment he required (although nothing apparently came of the inquiry).

32. Through all this time the wife did not let go of her view that she was entitled to a share of Property L. She gave the following unchallenged evidence:

    Since we separated in August 1986, I have asked Mr Scott for my fair share of Property L. I think over the years we would have discussed the property and money hundreds of time [sic]. I said to Mr Scott many times “Sell the house, I want my half”. Mr Scott has consistently said “You don’t need the money now, I [sic] just wait a bit longer”, “You will get your fair share”, “Lets see what happens”, “It could be a gold mine”, “It could be worth a million bucks to the right buyer”, “I will do the right thing by you”, “If I die before I sell it then this place goes to you and the four kids in my Will anyway”, “You don’t need to be on the deeds”.[3]

    [3] The Wife’s Affidavit, paragraph 77.

33. The wife was unshaken in cross-examination on her assertion that the husband had always agreed that she should have a share of the home. Among other things she said when pressed:

    He promised it would get sold and half would be mine, always.

34. In 2003 the parties attended mediation at the Community Justice Centre to discuss the issue. Property L was then on the market and the parties signed a document called a goodwill agreement which provided for the husband to pay the wife $240,000.00 from the proceeds of sale. They also agreed that if the sale fell through they would return to mediation.

35. The sale did fall through and another sale in 2006 also fell through.

36. The wife did not ask for the parties to return to mediation and I accept her evidence that this was because she believed that the mediation agreement meant that she had a legal right to a share in the proceeds of sale of Property L if and when it was sold. 

37. The parties continued to be on amicable terms until 2013 but the husband then changed his Will to remove the wife as a beneficiary. In 2014 the wife discovered that the husband had listed the property for sale. She became concerned that she would not receive anything when the home was sold and she placed a caveat on the property and filed an application for a property settlement.

38. Around this time the husband’s children became concerned about his capacity to care for himself and this led an application under the Guardianship Act which in turn led to the Public Trustee becoming the manager of the husband’s affairs.

39. It also led to the husband becoming a resident an (omitted) Aged Care facility at (omitted). He has signed an agreement with (omitted) Care that he will pay them a refundable accommodation deposit of $235,000.00 and there is no dispute that Property L will need to be sold to allow this deposit to be paid.

40. The wife continues to live in her unit in Property A.

The assets and liabilities

1. The wife has the following assets:

Description	Value
Property A	460,000.00
(omitted) Term Deposit account	17,155.00
(omitted) Term Deposit (3 x $5,000.00)	15,000.00
Household contents	3,000.00
495,155.00

1. The husband has the following assets:

Description	Value
Property L	620,000.00
(omitted) Trust Account	21,515.00
(omitted) Bank account	1,834.00
(omitted) Term Deposit account	118.00
643,467.00

1. The husband’s counsel maintained that the husband had the following liabilities:

Description	Value
(omitted) Care – Refundable Accommodation Deposit	235,000.00
(omitted) Care – arrears daily accommodation charges	4,990.00
239,990.00

1. This is a misleading representation of the situation. The arrears owing for daily accommodation charges are a liability but while the husband will be required to pay $235,000.00 to (omitted) Care upon the sale of Property L, it takes the form of an interest free loan to (omitted) Care and the money is refundable to him less a capped amount upon him leaving the facility.

2. If he leaves the facility because of his death the deposit less a capped amount will be paid to his estate.

3. Therefore upon the sale of Property L the husband will not have $620,000.00 less $235,000.00; he will (subject to selling costs and any difference between the valuation and the sale price) have $385,000.00 plus the deposit of $235,000.00 which he will pay to (omitted) Care in exchange for the right to reside at their facility.

4. The current asset position of the parties therefore is that the wife has in her name assets to the value of $495,155.00 and the husband has in his name assets to the value of $638,477.00.

The applicable law

1. S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.     

2. S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.

3. In Stanford & Stanford the High Court stressed that when an application for a property settlement was made the court must after identifying the property of the parties carefully consider whether it was just and equitable to make an order altering parties interests in property and it stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) of the Family Law Act.[4]

   [4] Stanford & Stanford (2012) FLC 93-518.

4. In Stanford the High Court found that it was not just and equitable to make property settlement orders but the facts in that case were unusual. 

5. The application for property settlement had been filed by the wife’s case guardian. When it was filed the marriage between the husband and wife was intact although they were separated as a result of the wife living in an aged care facility. 

6. The only significant asset of the parties was a home registered in the husband’s name in which the parties had lived as a couple for 40 years and in which the husband continued to live. The husband had set aside a sum of money to provide for the wife’s care.

1. The High Court were not satisfied that it was just and equitable in that case to make an order altering the parties interests in property. They said as follows:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship and the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). 

   By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just30.

   When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.[5]

   [5] Stanford & Stanford (2012) FLC 93-518, 42-44.

2. I have included this extended passage because it clearly demonstrates the difference between the situation in Stanford and the situation in the case before me.

3. The situation in the case before me is that for 32 years the parties worked together to acquire, conserve and improve a property which by mutual agreement they used as their home. They then separated. For most of the next eight years they both continued to use of the property. This tapered off to the point where for the 14 years prior to the husband going into aged care he had the sole use of the property.  The wife repeatedly pressed her claim for a share of the property and the husband said things which suggested that he recognised her claim but no settlement between them was ever finalised. No agreement is now possible because the husband is now asserting that the wife should receive no part of the value of the property.

4. This is just the kind of situation referred to in the first paragraph quoted above and I am abundantly satisfied that it is just and equitable to make a property settlement order in this case.

5. I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:

   a)to assess the contributions of the parties under s79(4)(a), (b) and (c) and to express those contributions as a percentage;

   b)to consider the matters in s.79(4)(d), (e), (f) and (g), which include the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;

   c)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.

Contributions

1. The wife’s counsel submitted that the court should assess contributions to Property L and Property A separately. He was inclined to leave to one side any other assets in each party’s possession.

2. I agree that it is appropriate to assess contributions to the real properties separately. Property L was acquired by the parties’ efforts during their 32 year marriage while Property A is entirely a post-separation acquisition and the wife made a substantial contribution to it from a post-separation inheritance.

3. The husband owned the land in Property L at the commencement of cohabitation and the parties lived on it for the entirety of their marriage. I accept the wife’s evidence that her aunt provided money to assist with having the electricity connected and there was no dispute that the parties worked together to construct a garage and later a house on the property and to pay off the loan connected with building the house.

4. The wife was engaged in home duties for the first ten years of the marriage but from then until separation she made contributions also as a wage earner. The husband was primarily a wage earner during the marriage but I am sure that he must have contributed in some way to parenting and to tasks around the home.

5. Each party made some complaints about the other’s conduct and about their efforts but I agree with the submission by the husband’s counsel that it is appropriate to assess the parties’ contributions during the marriage as equal.

6. After separation the wife continued to make a contribution in terms of cleaning and mowing at the home and she lived in the home and looked after it from 1988 to 1994. Thereafter she lived principally at Property A but she continued to make some contributions to cleaning and mowing at Property L and some contributions to the husband’s welfare. 

7. The wife was critical of the husband’s homemaker and gardening skills but he must be deemed to have made an important contribution to maintaining the home in the post-separation period.

8. No capital improvements were made to Property L after separation.

9. Notwithstanding that the husband brought the land into the relationship I am satisfied that contributions to Property L should be assessed as equal.

10. The wife purchased Property A using an inheritance from her parents, a loan from her son Mr I, savings of $25,000.00 which I am satisfied she acquired post separation and a loan from (omitted) Building Society.

11. I am satisfied that the wife made the loan repayments and paid a lump sum off the loan using a superannuation payment she received, which led to the loan being discharged in a short period of time.

12. The husband made some indirect contribution to Property A. He agreed to Property L being used as security for the loan, although why this was necessary is unclear and some of the superannuation the wife used to pay off the loan accrued during the marriage.

13. However widening the picture somewhat brings me to the conclusion that any contribution the husband made to Property A is more than offset by contributions the wife made to other assets which either remain in the husband’s possession or of which he had sole use after separation.

14. I am satisfied that the husband used some of the proceeds of the sale of the Property W property to buy Property N and he also retained the van purchased with those proceeds. Later on he retained all of the Property N sale proceeds whatever they might have been and he also retained all of the superannuation he received in 1990 even though some of it had accrued during the marriage.

15. Therefore although the husband made some indirect contribution to Property A the wife made an indirect contribution to other assets the husband had at separation or acquired afterwards and I am satisfied that on the basis of contributions the husband should be considered to have no entitlement to a share of Property A.

16. The wife has $32,155.00 cash currently but she received post separation inheritances and I am satisfied that the husband should not be deemed to have any entitlement to this money.

17. The husband currently has about $18,000.00 but I am satisfied that the wife should not be deemed to have made any contribution to this amount.

18. I am satisfied that on the basis of contributions the wife is entitled to 50% of Property L and the husband to 50% of Property L and the wife to 100% of Property A.

S. 79(4) (d) (e) (f) and (g)

1. I must consider the matters in s. 79(4)(d)(e)(f) and (g) and the only relevant subsection is (e) which requires me to consider the matters in s. 75(2).

s. 75(2) matters

1. The wife is 83. She is in receipt of an age pension of $435.00 per week and a small (country omitted) pension of about $20.00 to $25.00 per week; the amount fluctuates due to the exchange rate.

2. The wife is not living with anyone and has no dependants.

3. The wife lives in the unencumbered Property A property. She incurs about $96.75 per week for rates, strata levy, electricity, phone, water and contents insurance.[6]

   [6] Exhibit “D”.

4. The wife said that she had paid nearly $50,000.00 in legal costs for these proceedings.

5. The wife said that she was still in good health and was keen to enjoy life while she could and do some more travel. She went on a cruise with a friend a few years ago.

6. The husband is 91. He also receives an age pension of $435.00 per week and a small (country omitted) pension of about $43.00 per week with that amount also fluctuating due to the exchange rate.

7. The husband lives in the (omitted) Aged Care Facility at (omitted). He has no dependants.

8. The husband needs to pay a deposit of $235,000.00 to (omitted) Care to secure his residence at the Aged Care Facility. The husband’s pension covers his daily living costs at the facility as far as I can see. He has to pay extra for pharmaceuticals and newspapers.[7]

   [7] Exhibit “C”.

9. I was not provided with any information about the husband’s legal costs paid or unpaid.

10. On the basis of contributions the parties are each entitled to 50% of Property L. The wife proposed that she receive an additional 10% for s. 75(2) factors but I cannot see how this can be justified.

11. If the proceeds of sale of Property L are divided equally between the parties the wife will have:

Description	Value
Property A	460,000.00
(omitted) Term Deposit account	17,155.00
(omitted) Term Deposit (3 x $5,000.00)	15,000.00
Household contents	3,000.00
50% of Property L	310,000.00
808,155.00

1. The husband will have:

Description	Value
50% of the sale proceeds of Property L less refundable deposit	75,000.00
(omitted) Care – Refundable Accommodation Deposit	235,000.00
(omitted) Trust Account less debt to (omitted) Care	16,525.00
(omitted) Bank account	1,834.00
(omitted) Term Deposit account	118.00
328,477 .00

1. This division suggests that the wife is emerging hugely better off than the husband but the raw figures do not accurately reflect the difference between the parties’ positions because while $235,000.00 of the husband’s entitlement is in the form of a refundable deposit securing his accommodation, $460,000.00 of the wife’s entitlement is tied up in providing her with accommodation.

2. The difference between the parties positions is therefore that the wife will have $342,155.00 in addition to having her housing needs met and the husband will have $93,477.00 in addition to having his housing needs met.

3. Considering the matter in this light demonstrates the injustice and inequity of the husband’s proposal that he should retain Property L and the wife retain Property A. This would mean that after the parties housing costs were met the husband, who is 8 years older than the wife and has fewer needs, would have $403,477.00 in cash and the wife $32,155.00 being her post-separation savings.

4. On the basis of contributions the wife will have $342,155.00 in cash (or thereabouts; the amount may be different depending on the selling costs and any difference between the sale price and the valuation). This is more than sufficient to allow her to maintain a reasonable standard of living and enjoy some luxuries like another overseas trip.

5. There is no justification for any adjustment in the wife’s favour for s.75(2) matters, indeed the question needs to be asked whether the disparity in the amounts the parties will be left with means that the husband should receive an adjustment in his favour. An option would be to divide equally between the parties the amount in excess of their housing needs.

6. However the husband’s pension is sufficient to pay for his daily living costs and he will have some cash to pay for some extra comforts and little luxuries. I feel uneasy about the possible impact of legal fees on his share of the pool but the court can only act on evidence and the husband did not provide any evidence about his legal fees.

7. The court is under no obligation to equalise the positions of the parties and given the age disparity, the additional living costs the wife will have to meet and the fact that the husband should have sufficient to make him comfortable, I am not persuaded that any adjustment should be made in his favour for s.75(2) matters.

8. I am satisfied that the outcome is just and equitable.

9. During submissions the husband’s counsel referred to the impact of the orders sought by the wife on the husband’s testamentary intentions.

10. I am not necessarily convinced that this is something I should take into account in determining an outcome but insofar as the wife will have more to leave to her chosen beneficiaries than the husband, it must be remembered that she is better off because of how the parties fared in the post-separation period. The wife received several inheritances and she invested in a unit which has tripled in value due to market forces.

11. In her affidavit the wife said that there were some items in the home she wished to keep. It was a modest request and I will order that the wife can have those items if they are there.

12. The wife asked me to make an order that she or some of the children be able to go to the house to do some tidying up before the house was sold. I am not going to make such an order.  The property will be placed in the hands of an agent for sale and if tidying up is needed then either the parties will have to agree as to how it is done or a third party will have to be paid to do it.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:         5 July 2016