SULLY & SULLY
[2010] FMCAfam 960
•9 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SULLY & SULLY | [2010] FMCAfam 960 |
| FAMILY LAW – Parenting and property orders – mother’s relocation from [W] to Melbourne – history of care provided by parties and others – initial contributions of wife – s.75(2) matters. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 |
| Applicant: | MR SULLY |
| First Respondent: | MS SULLY |
| Second Respondent: | INDEPENDENT CHILDREN’S LAWYER |
| File Number: | MLC 2769 of 2009 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 14 & 15 April; 1 June 2010 |
| Date of Last Submission: | 14 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scriva |
| Solicitors for the Applicant: | Nancy V Battiato |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | William J Keogh, Moores Legal Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms Mandelert |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
All previous parenting orders are discharged.
There be equal shared parental responsibility of the three children [X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2008.
The said children live with the husband.
The said children spend time and communicate with the wife as follows:
(a)each alternate weekend during school terms commencing the first weekend in each of school terms 1 and 4 and the second weekend in school term 3 from after school on Friday until 5:00pm on Sunday (or Monday if it is a public holiday);
(b)for one half of the first and third school term holidays being the first half from 12 noon on the first Saturday until 5:00pm on the middle Saturday;
(c)for two weeks of the second term school holidays from 12 noon on the first Saturday to 12 noon on the last Saturday;
(d)for one half of the long summer vacation being the first half in the 2010/2011 years and each alternate years thereafter and the second half in the 2011/2012 years and each alternate years thereafter;
(e)notwithstanding any other orders to the contrary from 5:00pm on Saturday preceding Mother’s Day until 5:00pm on Mother’s Day and likewise the mother is to not spend time with the children at these times with respect to Father’s Day;
(f)by telephone at all reasonable times with the mother to instigate all such calls and when the children are in the care of their mother the father is at liberty to telephone them at all reasonable times. The children are not to be placed on speaker phone by either parent when speaking with the other;
(g)at such further and other times as agreed between the husband and wife;
(h)for the purposes of weekend time spent with during school term the mother or her agent is to collect the children at commencement and the parties are to meet at Avenel for changeover at the conclusion. At all other times transportation is to be shared equally by agreement.
On or before 31 October 2010 the husband pay to the wife by way of property settlement the sum of $147,575 (“the payment”).
Upon receipt of the payment the Court declares pursuant to section 78 of the Family Law Act 1975 the husband is the sole registered proprietor of the property contained in Certificate of Title Volume [omitted] and more particularly described as [Property L] and the wife shall sign all documents and do all things necessary to remove the caveat lodged by her in respect of the former matrimonial home situate at [Property L] (“the real property”).
Contemporaneously with the payment the husband:
(a)be responsible to the exclusion of the wife for the repayment of any loan secured on the real property and for payment of all other outgoings relating to the real property;
(b)effect a release of, or a discharge of, any liability including but not limited to that of principal debtor or co-debtor or as guarantor that the wife may have to any mortgage currently encumbering the real property and indemnify the wife in relation to that mortgage and thereafter indemnify her and keep her safe from all claims, actions, suits or demands that may arise out of or in relation to the real property (“the release”).
Contemporaneously with the payment the wife shall indemnify the husband against all and any liability with respect to any loans advanced to the parties or either of them by the wife’s father.
In default of the payment being made by the husband, the parties shall do all things, and make all such arrangements, and sign all documents, with the husband to pay all monies necessary, to procure a sale of the real property upon the following terms:
(a)by the appointment of a selling agent which is agreed between the parties or failing such an agreement as appointed by the President of the Real Estate Institute of Victoria or his nominee;
(b)by a method of sale and at a reserve price to be agreed between the parties and failing agreement by a method and price determined by the selling agent;
(c)pay to the selling agent any reasonable sums requested for advertising expenses in relation to the sale;
(d)attend any auction and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneer as to the acceptance of a price less than the reserve price;
(e)execute contracts of sale and all other documents necessary to facilitate and complete the sale;
(f)co-operate in every way with the selling agent in relation to the sale.
Upon the completion of the sale of the real property whether by private treaty or public auction the proceeds of the sale are to be distributed in the following order and priority:
(a)in payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
(b)in adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(c)in discharge of any loans secured by way of mortgage registered on the title of the real property including any outstanding rates and charges;
(d)in payment to the wife of $147,575, less any amount the wife has already received from the husband by way of payment pursuant to these orders, together with interest on such sum remaining calculated from the date the payment was due at the rate provided for in the Family Law Rules 2004 save that should the real property achieve a sale price in excess of $221,000 then any such excess shall be apportioned as to 60% to the wife and 40% to the husband;
(e)the balance of the proceeds in payment to the husband.
Pending the transfer of the real property to the husband or the sale of the real property, the husband shall have sole use and occupation of the real property but only provided that:
(a)he pays and continues to pay, as they fall due, all regular instalments in respect of the mortgage, council rates, water rates and household building insurance in respect of the property (“the outgoings”);
(b)he shall indemnify and keep indemnified the wife in respect of any such amounts;
(c)if any outgoings remain unpaid, as at the date of transfer of the real property, the husband shall be solely liable for any such arrears;
(d)he keep the property tidy, clean and in repair (having regard to its present condition) and permit, if relevant, inspection by agents and prospective purchasers at all reasonable times.
In addition to the payment provided for in Order no. 5 herein the husband pay to the wife 60% of all interest earned on the sum of $54,000 deposited in an account in his sister’s name from the time of deposit to the time of withdrawal for the purposes of satisfying these orders or to this day whichever is the later.
Unless otherwise specified in these orders, save and except for the purpose of enforcing the payment of any monies due under these or any subsequent orders, the husband and the wife each be declared the owner at law and in equity absolutely and to the exclusion of the other in accordance with the following:
(a)each party be solely entitled to all chattels of whatsoever nature and kind including but not limited to motor vehicles, goods, furnishings, household effects and personal effects in the possession or control of such party as at this date;
(b)each party be solely entitled to all personal property of whatsoever nature and kind including but not limited to any moneys, shares, debentures, investments and choses-in-action and all financial resources which stand in their sole name or to their credit respectively at this date;
(c)all insurance policies to become the sole property of the beneficiary named therein;
(d)all superannuation entitlements to become the sole property of the beneficiary named therein and each party forego all claims he or she may have to any superannuation or work related benefits belonging to or earned by the other.
AND THE COURT NOTES THAT:
Pursuant to section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as is practicable finally determine the financial relationship between them and avoid any further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Sully & Sully is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2769 of 2009
| MR SULLY |
Applicant
And
| MS SULLY |
First Respondent
| INDEPENDENT CHILDREN’S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Each of the mother and father in these proceedings sought final orders with respect to their children and property. An Independent Children’s Lawyer was appointed pursuant to orders made 5 November 2009 and accordingly became a party to the proceedings for the purposes of the children orders application.
The husband and wife commenced cohabitation at marriage [in] 2002. They separated [in] 2009 after a marriage of approximately seven years. There are three children of the marriage [X] born [in] 2003 (now aged 7 years); [Y] born [in] 2004 (now aged 6 years); and [Z] born [in] 2008 (now aged 2 years).
The parties to the proceedings agree that an order should be made for the husband and wife to have equal shared parental responsibility of their children. There is no reason with reference to section 61DA in the Family Law Act 1975 (hereafter referred to as “the Act”) to rebut the presumption of such an order being made and accordingly the Court will make same with the consent of the parties.
Each of the husband and wife seek that the children live with them. The Independent Children’s Lawyer seeks an order for the children to live with the husband. The determination of the Court is that the children will continue to live with the husband in [W] as they have done since the making of an interim order to that effect by FM O’Sullivan on 16 May 2009. Two of the three children were born in [W] and all resided there until separation when the mother without the father’s knowledge or consent relocated their residence to Melbourne for a brief period. An order of the Court secured the return of the children to the former matrimonial home, their father’s care and the area of [W] being an area in which extended family reside. The mother remains steadfast in her view that regardless of the outcome of these proceedings she will not relocate from Melbourne. Thus it will not be geographically practicable for the children to spend time and communicate with their mother for periods other than that set out in these orders. The Court has considered section 65DAA of the Act but regards the distance between Melbourne and [W] as prohibitive of the making of orders for provision of equal time or substantial and significant time with the non-resident parent. Indeed as do the parties.
History
The husband is aged 38 years and the wife is aged 40 years. The husband’s health is good. The wife suffers from a condition known as myasthenia gravis. Dr P, medical practitioner practicing in the areas of General Neurology, Neuro-ophthalmology and Neuro-otology swore an affidavit in the proceedings to which he annexed his report of 14 October 2009. He first saw the wife in June 2007 and then not again until April 2009. He initially saw her at the request of her local neurologist Dr R in [A]. The wife was having difficulty coping at that time and needed a diagnosis and subsequently to stabilize her medication. He continued to see her after April 2009 following her move to Melbourne. His evidence was that the wife had a clinical diagnosis of sero-negative myasthenia gravis. He described her condition as fairly mild and one which was adequately controlled with fairly modest treatment. He thought her condition unlikely to substantially affect her ability to care for her children so long as her condition was adequately controlled. Any impairment from her condition he thought likely to be temporary.
Dr P noted the wife was on a low dose of steroids. His evidence was that she complained of muscle weakness which limited her ability he thought for work and household duties. He noted her condition could be a little bit unpredictable but that it was unusual for it not to respond to drugs. Symptoms of her illness included double vision, generalizes muscle weakness and respiratory problems. Dr P’s evidence was that the mother could become tired with the condition and fatigue was a symptom of the condition, and that it was possible that it could impact upon her care for the children. He said however that parents coped with this level of impairment all the time. His evidence was that any hands on care of the children provided by the wife’s parents was due to reasons other than her health which included her social circumstances.
The husband left the former matrimonial home when requested to do so by the wife [in] 2009. He left the children in the care of the wife. The husband moved nearby to his mother’s home, and on a daily basis provided transportation and care to the wife and children. He continued to be actively involved in their care as was his mother. The separation was fairly amicable at that time. The husband and his family were keen to assist the wife in her care of the children as they had perceived over time that she could not manage them without significant assistance.
The wife then sought to obtain an Intervention Order against the husband, I find, as part of her seeking to relocate the residence of the children to Melbourne. Ultimately she did not proceed with this application. The wife thought little of the impact upon the children of removing them from their home, the company of their father and their extended family in the country and their school/kindergarten. She showed then and now in her evidence as to that impact, a lack of insight and lack of commitment to a continuing relationship between the children and their father contrary to his approach to the children’s relationship with their mother. The husband obtained a recovery order for the children’s return to his care and he has provided for them emotionally, physically and financially since March 2009 save for those times that they spend with their mother. In that time he has worked and relied on family for assistance in the caring of the children before [omitted] 2009 ceasing work to care for the children full-time and on limited income. The wife’s child support contribution is minimal because her own circumstances are very much tied to her health and its limiting her capacity to work. In addition she has been out of the workforce for a number of years.
Mr A, Family Consultant provided two reports in the proceedings dated 2 November 2009 and 18 March 2010. In both he recommended that the three children reside with their father. His evidence was that the children are well cared for by their father whereas his observations of them with their mother led him to conclude that the mother was less capable of providing that care on a long term basis. Further, that she would have difficulty coping without the assistance of her parents and by comparison with the father, was not as confident in controlling the children’s behaviour.
Mr A, in his second report stated at paragraph 45:
In summary, certainly in the case of the 2 older children, [X] and [Y], they seemed sharper and more responsive than their mother: so that, while Mrs Sully seemed quite capable of dealing with each child one-on-one, continual responsibility for all 3 seemed as though it might be at or near the limit of her ability; certainly, on a continuous basis.
and then later at paragraph 61:
There can be no doubt that the children love and have an attachment to their mother, and she, to them. At the same time, as previously observed during the preparation of the family report, for whatever reason/s - - her myasthenia gravis and/or something else - - Mrs Sully does not appear to be as competent and confident at parenting the 3 children, as does Mr Sully.
This evidence remained convincing and was not successfully challenged.
The mother by the time of the preparation of Mr A’s second report had moved to reside with her parents. It is to this home that the children go on weekends when with their mother and she is assisted in caring for them by her parents. Her parents love their grandchildren and ably assist her. I find the children are not at risk in their care. Indeed to the contrary, they are much loved and well cared for.
The wife’s family comprising her mother, father, brother Mr M and his wife Mrs M are all supportive of the wife and her father, brother and sister-in-law gave evidence in the proceedings on her behalf. They have observed her to have a warm and loving relationship with her children. Further, they observed her to cope well with caring for her children. Further they all depose to the children and in particular the child [Y] having a good relationship with his paternal grandfather Mr P. Mr P denies the allegations made in the proceedings as allegedly reported by [Y] to his father and other extended family members that he has tied up, struck and yelled at [Y]. I accept Mr P’s evidence and find that he has not acted in such a way toward any of his grandchildren. Rather he has been a loving and kind grandfather who has assisted his daughter in caring for the children at those times that they are in his and his wife’s household. The children respond well to him, enjoy their time in their grandparents household and love their extended maternal family members.
[X] expressed a wish to Mr A that she live with her mother. Given her age I take this into account but give it little weight by comparison with the other additional considerations to consider as set out in section 60CC(3), the main being the undesirability of separating the three children. Further, I find the expression of [X]’s views unduly influenced by the mother and not indicative of her real feelings. Mr A’s evidence was that certainly [X] wants to see more of her mother but that he was not entirely convinced that she would like to reside in Melbourne and certainly the Court should not separate the siblings. He referred to her expressing this preference after she had been with her mother when she asked to speak to him again. Mr A’s opinion was that nothing [X] had ever done or said to her father in his company would convince him about her genuinely saying as she did “I’m not really happy with Dad”. He found such a statement unconvincing against the context of his knowledge of the child in the context of her father, paternal family and siblings. He observed her to interact with her father in a relaxed and normal way. Mr A was firm in the giving of his evidence that [X] closely identified with [W] and that in his opinion she should remain living there with her father and brothers. Further that even if the mother were to reside in [W] he would not recommend a shared care regime but would prefer the children to spend substantial time with the mother. He confirmed the evidence of each of the parents that the children love and are attached to both of them. The two boys have bonded more closely with their father although they love their mother. The father actively promotes the mother’s relationship with all three children, he realizing her importance to them. The difficulty is her determination to live geographically distant from them. In these circumstances, maximizing the children’s time with their mother is unfortunately impracticable.
The evidence of the paternal grandmother and the husband’s cousin Ms K Sully, a nursing student, was that the paternal grandmother assisted the mother on a daily basis with respect to her care of the children whilst the mother resided in [W] by providing lunch on most days and washing the children’s clothes. This was also the evidence of the husband. I accept given the medical evidence and that of the paternal grandmother, the father and Ms K Sully that the mother looked to the father’s extended family to assist her in caring for the children both when the husband was present and when he was not (because he was employed in the evenings as a projectionist) and that they in fact provided such assistance. Ms K Sully was at the home almost every evening to assist the mother in caring for the children including the bathing of the children. At these times the husband was absent at his employment. I accept that as the children grew the mother found it increasingly difficult because of her then undiagnosed illness, to care for the children and that the husband’s family noticed this and readily assisted out of concern and care for the family unit.
The husband’s sister Ms G Sully also gave evidence in the proceedings. Like her mother and cousin Ms K Sully she was an impressive witness. She corroborated the evidence of her mother and brother, the father in the proceedings. She observed the father’s care of and close bond with his three children in particular the youngest child [Z]. She was positive about the mother saying they had always had a good relationship. Her evidence was further that the child [X] became distressed at times after speaking with the mother because there was considerable pressure placed upon the child by the mother and maternal family to express a wish to reside in her mother’s household. I accept the evidence of the father’s extended family members that contrary to the wife’s assertion, she was made welcome by the family in [W] and provided with much support over the years of the marriage. Her evidence that “she had no support whatsoever” I reject. She had both support and companionship. That support was not only external to her immediate family unit but within the family unit in the form of the husband.
The Court must regard the best interests of the children as the paramount consideration (section 60CA). It is not reasonably practicable for the children to spend equal time with both their parents nor for the children to spend substantial and significant time with the mother given the mother’s insistence that she will remain living in Melbourne. The parents communication will improve after this hearing. Much affidavit material went to matters of differing perceptions or priorities without those matters being critical. The mother’s resolve to remain residing in Melbourne however where she has the support of her parents indicates her need for their support and lack of capacity to spend equal time with the children both on a practical and geographical level. Both parents can provide for their children emotionally and intellectually but the father more so physically. Both parents love and are loved by their children. Both parents have similar attitudes toward parenthood and its responsibilities. There is no element of family violence or risk to the children as set out in the legislation. The likely effect of moving the children from [W], their grandmother, aunts, other relatives and friends would be one of confusing dislocation and unhappiness for the children. To remove them from their father’s ongoing care would be detrimental to their welfare. Accordingly the three children shall continue their residence with their father in [W].
Property
There is a modest pool available for distribution between the parties. It encompasses the former matrimonial home occupied by the husband with a net value of $139,000, monies in a savings account of $54,000 and the parties respective superannuation and motor vehicles. No issue has been made with respect to the parties retaining furniture in their respective possession without further adjustment. The duration of the marriage was a period of seven years. Each of the parties seek they retain their own motor vehicles and superannuation entitlements. The husband wishes to retain his ownership of the former matrimonial home.
The contribution of the wife at commencement of the marriage considerably exceeded that of the husband. The wife owned real property situate at [Property H] in the State of Victoria. She sold same in 2002 and obtained net proceeds of sale of $99,105.76. The wife had a capital gains tax liability with respect to this sale. The husband made no initial financial contributions to the marriage and had a $40,000 personal loan which he did not disclose to the wife. During the marriage both parties made a contribution, the wife and her father making a direct financial contribution together with her contribution as home maker and parent and the husband contributed as home maker and income earner. I find their respective contributions throughout the marriage aside from the application of the wife and her father’s funds to have been equal. Each of the parties made a contribution to the welfare of their family and to the acquisition and maintenance of their home. Presently both parties are in receipt of Centrelink benefits and such income receipt is likely to occur into the future. The husband will have the ongoing care of the children without financial assistance (in any meaningful way) from the wife. That necessary support of the children is a consideration to be factored in when looking to section 75(2) matters. Offsetting it, is the wife’s limited capacity to obtain employment as a result of her time spent outside the workforce and her physical incapacity. The husband is more readily able to be gainfully employed when [Z] reaches school age or even now with appropriate caring arrangements in place.
When the parties purchased their home in [W] but in the sole name of the husband at his insistence, the wife’s father loaned them the sum of $10,000. Such monies have not been repaid by the parties but nor has a demand upon them been made by the wife’s father. The wife’s father made a further contribution to the parties assets in that following separation he arranged and paid for necessary repairs to the wife’s car so that she could drive it. The total cost was approximately $700. The value of that motor vehicle is however negligible.
The wife is a beneficiary of her parents’ family trust being the [M Family Trust] (“the Trust”). The Trust has made no distribution of income to either the wife or her brother. I am satisfied that the wife has made no contribution to the assets of the Trust and nor has she any control as to the distribution of its funds. Her interest is not a matter which weighs heavily in any property apportionment between the parties.
The husband was a registered joint proprietor of land recently sold after the death of his father. The evidence is that he has no equitable entitlement to any proceeds of the sale which have all been distributed to his mother. The land was purchased by his parents but held in the names of the children and the husband made no contribution to the land.
The wife applied the sum of $84,714 from the sale of her previously owned real property to what she understood to be matrimonial assets. She provided the husband with two cheques, the first to reduce the mortgage on the former matrimonial home and the second to pay monies to Mr C (the husband’s brother-in-law) to acquire what she understood to, be an increase in the husband’s shareholding in the [Entertainment Business] (hereafter “the [Entertainment Business]”). I find the wife acted in good faith and that the husband in fact represented to her an interest in the [Entertainment Business] which he did not have. In total $88,000 was lent to Mr C. It was claimed by the husband to have been repaid in full by him with a sum of $54,000 now remaining which the husband has placed in a bank account of his sister’s to keep from the wife.
I prefer the evidence of the wife as to financial contribution matters. The husband was evasive, gave contradictory accounts in his affidavits and in evidence and in his absolute control of the parties funds sought to hide matters from the wife to disadvantage her financially. The wife was a witness of credit who in good faith gave her entire savings to the husband who did not apply same as represented by him to her. It would be unjust and inequitable to make orders that resulted in the husband gaining from his misleading of the wife as to family investments and his concealing of assets from her.
As referred to previously in these reasons the asset pool of the parties is modest. Their incomes are modest. The husband had no real interest in his deceased father’s farming property and I accept the proceeds of sale of same went to his mother. The husband did receive the sum of $4,400 from the sale of [farm machinery] post separation. At separation the parties had credit card and [B] debt totalling approximately $4,600. The husband has attended to partial repayment of same and will continue to do so out of income and capital that was and is available to him and not so available to the wife. The assets of the parties are otherwise:
Assets
Value
The former matrimonial home [Property L]
$221,000
Less $82,000 mortgage
Equity $139,000
Wife’s motor vehicle
Minimal value
Husband’s motor vehicle
$10,000 approximately
Husband’s superannuation
$63,625
Wife’s superannuation
$31,000
Money held by the husband’s sister
$54,000
Total
$297,625
The wife relied upon an affidavit sworn by Mr E, Chartered and Forensic Accountant on 14 April 2010. He attached a report of the interest of the husband (as described by him) in the [Entertainment Business]. He noted the husband does not hold any units in the [Entertainment Property Trust] or the [Entertainment Business Trust] both of which own and operate the [Entertainment Business]. The relevant interest in the [Entertainment Business] he noted appears to be owned by the [C Family Trust] which was established in July 1999 and in relation to which the husband has no interest. The husband however loaned to the Trust a total sum of $88,000 noted in that sum as at 30 June 2008. This represented approximately 7.54% of the total initial investment and in the five year period 2003/2004 to 2006/2007 the beneficiary distributions paid to the husband and wife from the [C Family Trust] were calculated based upon an implied 7.33% share of the [Entertainment Business] profits. The total beneficiary distributions made to the husband and wife from the [C Family Trust] were $86,025. Those distributions were nearly all paid to the wife and reflected in her taxation returns. As a result of her payment of taxation with respect to same she received the sum of $9,000 in the second half of 2009 by way of taxation refund from the Australian Taxation Office. The wife retained such funds and applied same for living expenses of herself and the children. The husband had deposed in July 2009 that he had a 7% interest in the [Entertainment Business] but in his subsequent affidavit of November 2009 he stated that he had no interest but rather had loaned monies to Mr C which were repaid together with the payment of the distributions. Mr C then corroborated that evidence. The wife deposed to the husband telling her he in fact had a 7% share in the [Entertainment Business] which he acquired prior to the marriage and that the application by her of $40,000 from the net proceeds of sale of her unit [Property H], would increase that shareholding.
The husband worked [in] the [Entertainment Business] until August 2009 when because of his care of the children he ceased such employment. He was employed by his brother-in-law Mr C. His hours of work at the [Entertainment Business] were 5:00pm until approximately 11:30pm. Mr C gave evidence in the proceedings. He is a majority (54%) shareholder in the [Entertainment Business] business with the other shareholders being unrelated third parties.
After separation Mr C paid to the husband large amounts of cash by way of repayment of the loans advanced to him by the parties. The husband kept such funds at his mother’s home again to keep out of reach of the wife. He then again lent the monies to Mr C who claimed he invested same in a shopping complex. The husband’s sister gave evidence that she now holds these funds being $54,000 in a bank account in her name and on behalf of the husband. The evidence of the husband, his sister and Mr C was contradictory but overall the evidence establishes that the sum of $54,000 remains of the total borrowings of Mr C from the parties of the $88,000 as at 30 June 2008.
I have determined that the asset pool should be apportioned as to 60% to the wife and 40% to the husband. This is an amount of $178,575 to the wife. She currently has superannuation entitlements of $31,000. Thus the payment to be made by the husband who holds the remainder of the assets is $147,575. This apportionment is based on a 15% adjustment from an equal division in the wife’s favour for contribution and a 5% adjustment in the husband’s favour for s.75(2) matters. The orders I make are just and equitable in all the circumstances of this case.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 9 September 2010
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