Sunday and Sunday

[2008] FamCA 638

FAMILY COURT OF AUSTRALIA

SUNDAY & SUNDAY [2008] FamCA 638

FAMILY LAW – PROPERTY SETTLEMENT – Contributions –  no issue as to other factors – weight to be given to significant initial contributions of husband – valuation of livestock and question of determining cost of sale to assess their value.

Family Law Act 1975 (Cth) ss 75(2), 79

Blake and Blake [2007] FamCA 10
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Rosati and Rosati (1998) FLC 92-804

APPLICANT: Ms Sunday

RESPONDENT: Mr Sunday

FILE NUMBER: LNC 117 of 2007

DATE DELIVERED: 30 July 2008

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 25 & 26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Waterhouse

SOLICITOR FOR THE APPLICANT: Corby & Co

COUNSEL FOR THE RESPONDENT: Ms A Trezise

SOLICITOR FOR THE RESPONDENT: Andrea Trezise

Orders

1. The husband pay to the wife the sum of $837,740.80 within sixty (60) days from the date of this order.

2. At the time of payment referred to in order 1 above, the wife do all acts and sign all documents to transfer to the husband the whole of her right title and interest in the:-

   (a)Property known as “E” and described in Land Titles Office as “…” as more particularly described in Certificate of Title Volume … Folio …; and

   (b)Property known as “C” and described in the Land Titles Office as “…” and described in Certificate of Title Volume … Folio …;

   (c)Property known as “M” situate at … in Tasmania and described in Certificates of Title Volume … Folios … and … described by the Land Titles Office as … (and General Law Conveyance Registered No. …);

   (d)Assets of the farming business known and trading as Sundays, including plant and equipment but excluding livestock ;

   (e)Holden Rodeo motor vehicle, boat, trailer and accessories in the possession of the husband;

   (f)Furniture and contents formerly used by the parties jointly but now in the possession or control of the husband;

   (g)Any monies at banks, credit unions, savings accounts, investments in the sole name of the husband;

   (h)Loan to Mr K

   to the intent the husband will be the sole and absolute legal owner of the above property as against any claim or interest sought by the wife.

3. The husband do all acts and sign all documents to transfer to the wife his interest in:-

   (a)B Property, including mooring buoy;

   (b)Mercedes Compressor motor vehicle registered No: …;

   (c)Money at banks, credit unions, savings accounts and investments in the sole name of the wife;

   (d)Furniture and contents formerly used by the parties jointly but now in possession and control of the wife;

   (e)Any interest the wife has in T Hire Pty Ltd;

   (f)The wife’s interest in the Mooring Buoy adjacent to the home at B;

   (g)Wife’s RBF Super fund.

4. Each party shall otherwise be entitled against the other to property (whether real or personal) in their possession or control (except as otherwise dealt with by these orders).

5. Within thirty (30) days of the date of this order the husband transfer to the wife his interest in the 1000 Telstra shares jointly owned by the parties and the 600 Telstra shares owned by the husband.

6. At the election of the husband he pay to the wife the sum of $32,944.40 within thirty days from the date of this order and upon such payment all of the sheep livestock referred to in the expert report of Mr W sworn 4 June 2008 be transferred to the husband.

7. At the election of the husband he pay to the wife the sum of $23,408.80 within thirty days from the date of this order and upon such payment all of the cattle livestock referred to in the expert report of Mr W sworn 4 June 2008 be transferred to the husband.

8. In the event that the husband does not elect to take the cattle livestock and/or the sheep livestock, such livestock as is not acquired by him in accordance with these orders (save and except any stock sold or acquired in the normal course of business between the date of valuation of stock and the date of this order) then;

   A.     The Husband forthwith do all acts and things so as to effect a sale of all sheep and/or cattle owned by him for the best price reasonably obtainable in the following manner:

   a)the sheep/cattle shall be listed for sale by auction to be conducted by Elders Ltd (“the agent”) at the property “M”;

   b)the sale price of the sheep/cattle shall be unreserved with the Husband and the Wife each having the right to bid at the auction;

   c)the Husband and the Wife shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):

   i.doing or saying nothing to hinder or prevent the sale being effected;

   ii.ensuring that the sheep are in reasonable condition at the time of auction;

   iii.signing all documents requested by the agent in relation to the sale of the sheep including any authorisation for advertising;

   d)the Husband shall pay 60% and the wife 40% of all costs of the auction incurred by or on behalf of the agent including but not confined to advertising, commission, hire of equipment and/or staffing for the preparation for or conduct of the auction;

   B.     On settlement of sale of the sheep the proceeds of sale be paid in the  following manner and priority:

   a)all costs and expenses of the sale including the agent’s commission and  auction expenses (including repayment of any expenses for the preparation for or conduct of the auction as have been paid by the Husband);

   b)the balance then remaining be divided as to 60% to the husband and 40% to the wife.

9. This matter be removed from the list of cases requiring determination.

10. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

    IT IS CERTIFIED

11. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:  LNC117/2007

MS SUNDAY

Applicant

and

MR SUNDAY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Sunday (“the wife”) and Mr Sunday (“the husband”) relating to division of property following the breakdown of their marriage.

2. There is a pool of assets in excess of four million dollars.  With the exception of the livestock, the parties are agreed as to the division of part of the assets in specie as between themselves and payment by the husband to the wife of any shortfall once the court has determined the division as between the parties.

3. The wife seeks orders that the property be divided equally between the parties on the basis of contribution entitlements by the wife of 45 per cent and an adjustment in favour of the wife in respect of the other factors[1] of 5 per cent. This claim for the adjustment in respect of other factors was abandoned by the wife later in the trial. 

   [1] Defined later in these reasons.

4. The wife concedes that there was a greater initial contribution by the husband to the pool of assets but says that having regard to the principles of law and having regard to the husband’s use of the former matrimonial home and access to the income of the farm properties that an adjustment should be made as sought by her.

5. The husband claims that his initial contributions at the commencement of the relationship were far greater than that of the wife and as such there ought to be an adjustment of property on the basis that 70 per cent of the property remains with him and 30 with the wife.  He says there ought not to be an adjustment for other factors.

6. Thus the issues identified by the parties were the initial issues as to contribution (including the contribution by the husband of his redundancy payment of about $130,000.00 when he left S Company in 1999), and the husband’s claim of a significant initial contribution.

7. The wife claims there ought to be an adjustment on a contribution basis by virtue of the husband’s ability to earn income from the farm property in the two and half years since separation.

8. Initially there were submissions that there was going to be an argument as to waste on the part of both of the parties. However, during the hearing this issue was clarified and on submission it appears that such arguments were abandoned.  In any event in these reasons I have made a determination in regard to the issue of waste.

9. There was also an argument in terms of the valuation of the livestock which I will deal with later in these reasons.

10. The parties were in a relationship for a considerable period of time (1983 to December 2005) and whilst there was some cross-examination on behalf of each of the parties as to their credit it was conceded by counsel for both parties that the contributions during the relationship were equal, subject to the initial contributions including an undetermined amount claimed by the husband in relation to his redundancy payment from S Company in 1999.

11. Any statement of fact in these reasons is to be regarded as a finding of fact unless contrary intention occurs.

BACKGROUND

1. The husband is aged 61 and the wife is aged 54.  No evidence was adduced of any significant health difficulties of either the husband or the wife.  The parties commenced cohabitation in 1983.  There was an issue between the parties as to whether that was in early 1983 or October 1983.  Nothing of substance swings on the difference of some months in terms of the date of cohabitation.  The parties married in July 1997 and separated on the 28 December 2005.  They were divorced in May 2007.  They had lived together for about 22 years.

2. There are no children of the marriage, although the wife had two children of a previous marriage, namely T and N.  The evidence is that T did not live with the parties but that N did live with the parties on and off during part of their relationship.  There was an issue as to the time that N lived with the parties.  Bearing in mind the concession of counsel and what would have been my clear findings, in any event, that their contributions during the relationship were equal, very little swings on the time N lived with the parties.

3. After separation the wife moved to live with Mr P and the wife asserts that the relationship between her and Mr P ceased in about August 2007.

4. Mr P was served with a subpoena to give evidence during this hearing.  The husband did not call Mr P pursuant to the subpoena.

5. Apart from the broad assertion by the husband that the relationship between the wife and Mr P continues there is no other evidence to that effect.  I find that the wife and Mr P have a close relationship and a continuing involvement in their joint ownership of a property at B.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:

   39. “The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4) (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4) (d), (e), (f) and (g), (“the other factors”) including, because of s.79 (4) (e), the matters referred to in s.75 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.

   40.Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”

2. Thus the approach in this case involves a number of steps:-

   a.The identification of the property and its value;

   b.An evaluation of the parties’ contributions having regards to
   ss 79(4)(a)(b) & (c);

   c.Consideration of any adjustment to that assessment having regard to the relevant matters in ss 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and

   d.A review of the outcome against a just and equitable requirement.

CREDIT OF WITNESSES

1. Both parties were straight forward witnesses who gave evidence which I regarded as accurate and generally truthful bearing in mind their own subjective views of the subject events.  Neither party’s evidence was seriously impeached during the course of cross-examination.

IDENTIFICATION OF PROPERTY AND ITS VALUE

1. There are:-

1.	“M” and “E” property (agreed value)	$1,440,000.00
2.	“C” property (agreed value)	$1,220,000.00
3.	Plant & equipment on the properties (agreed value)	$51,970.00
4.	Commonwealth Bank account in name of husband	$150.00
5.	Husband’s Commonwealth Bank fixed deposit	$559,000.00
6.	Husband’s furniture	$2,500.00
7.	Husband’s boat	$3,000.00
8.	Loan to Mr K	$35,000.00
9.	Holden Rodeo motor vehicle	$17,550.00
10.	Wife’s interest in property at B	$195,000.00
11.	Half interest in mooring buoy B	$5,000.00
12.	Wife’s Commonwealth Bank account no. 1	$27,775.00
13.	Wife’s Commonwealth Bank account no. 2	$930.00
14.	Wife’s Commonwealth Bank account no. 3	$7.00
15.	Wife’s Commonwealth Bank term deposit	$220,340.00
16.	Money invested by wife with Tasmanian Perpetual Trustees	$30,250.00
17.	Wife’s furniture (agreed value)	$20,000.00
18.	Telstra shares of husband, wife, and jointly owned (all to be transferred to the wife)	$11,830.00
19.	Wife’s Mercedes motor vehicle	$30,650.00
20.	Wife’s swap card collection	$35,000.00
21.	Wife’s jewellery	$20,000.00
22.	Wife’s RBF Tas Super	$226,430.00
23.	Cattle	$58,522.00
24.	Sheep	$82,361.00
Total	$4,293,265.00

1. There is agreement between the parties that the husband will retain property items 1 to 9 and the wife will retain property items 10 to 22.   That approach suggested by the parties is just and  equitable.

2. There an issue about whether superannuation ought to be in a separate list of property.  In this case the wife paid $200,000.00 into her superannuation account on the 30 June 2007.  This payment was made during the course of these proceedings and after separation. It was a financial decision made by the wife for her own future.  It was open for the wife to leave this sum out of the superannuation fund and retain it as other property. Having regard to that circumstance, I intend to include the superannuation in a single list

3. There was an allegation that the wife had an interest in a business known as
   T Hire (Tas) Pty Ltd (“T Hire”).  The evidence was that the wife and Mr P purchased equipment sometime after separation.  This equipment cost in excess of $300,000.00. 

4. The wife lent $100,000.00 to T Hire, Mr P lent $100,000.00 to that company and the company borrowed from a bank an additional sum of $150,000.00 (which advance was secured against monies held by the wife with the Commonwealth Bank). 

5. Since that time the $100,000.00 lent by the wife to T Hire has been paid to her by Mr P, who is now owed $200,000.00 by the company.  T Hire continues to own the equipment and some other tools of trade. It has a liability of $200,000.00 to Mr P and a liability slightly in excess of $100,000.00 to a bank.  The wife had a share in T Hire but has assigned her interest in that share to Mr P on repayment of the $100,000.00 debt.  I find that the wife has no equity in the business and/or T Hire.

6. Mr W, was appointed single expert to value the livestock, plant and equipment on the farms owned either jointly or solely by the parties. He undertook that valuation in November 2007. The plant and equipment  was valued at $51,970.00.  There was no issue as to this valuation and there was no issue that the plant and equipment  was to be retained by the husband.

7. Mr W valued the livestock at $165,745.00.  The husband sought to adduce late adversarial expert evidence that the value of the livestock was $84,825.00.  I declined leave to the husband adduce that evidence and gave ex tempore reasons at that time. 

8. Mr W was cross-examined and adhered to the livestock valuation that he had provided. Of that value $96,895.00 related to the sheep and $68,850.00 related to the cattle.   The evidence of Mr W was that the cost of selling this livestock would be between 10% and 15%. He was cross-examined about this and gave evidence of what was needed to sell such livestock, including involvement of the husband and continued feed for the livestock. The additional costs involved the man hours necessary to organise the livestock for sale and the cost of feeding the livestock increases the costs of the sale.  I find that the cost of disposing of the livestock is at least 15% and thus the real worth of the stock is;

   Sheep   $82,361.00

   Cattle  $58,522.00

9. As such I determine the value of the livestock at $140,883.00.  

10. In evidence the husband said, and I accept, that some of the livestock would need to be retained by him to allow his business to continue and to reflect his involvement in the sheep livestock industry over a number of decades. The husband gave emotional evidence as to his connection with the livestock and in terms of the time that he has spent developing the bloodlines of livestock.

11. The husband has said that he does not wish to purchase the sheep at the valuation of the single expert.   In the orders I propose that the husband shall have the opportunity of acquiring the sheep and/or the cattle at the value determined by me above within thirty (30) days of the date of these orders.  If he choses not to acquire the sheep livestock and/or the cattle livestock at those values then I have put in place default orders providing for the livestock sale in a form agreed by the parties.

12. In terms of the legal principles in determining the allowance of the 15% sale costs those principles are similar to those in determining allowance for capital gains tax.  The Full Court of the Family Court discussed the capital gains tax principles in Blake and Blake [2007]FamCA 10 when it said at para 23;

    23.His Honour had a little earlier in his judgment set out the following well known passage from Rosati and Rosati (1998) FLC 92-804:

    ‘It appears to us that although there is a degree of confusion, and possibly conflict, in the reported cases as to the proper approach to be adopted by a court in proceedings under s.79 of the Act in relation to the effect of potential Capital Gains Tax, which would be payable upon the sale of an asset, the following general principles may be said to emerge from those cases:-

    (1)Whether the incidence of Capital Gains Tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.

    (2)If the Court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any Capital Gains Tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.

    (3)If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the Capital Gains Tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s.75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.

    (4)There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of Capital Gains Tax into account in valuing that asset.  In such a case, it may be appropriate to take the Capital Gains Tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.’

    24  It must be borne in mind that the statement by the Full Court in Rosati (supra) does no more than provide guidelines for the exercise of the property settlement jurisdiction under s 79 of the Act, and must be applied as the justice and equity of the case in question requires.

1. In respect of livestock the evidence was that the majority of it was destined for sale. Some were kept for breeding purposes.  Some of the breeding rams were offered for sale as either breeding stock or for meat. In any event the majority of the livestock would need to be sold, because that is the nature of this asset. Accordingly the costs of sale should be included.

2. The allowance of the costs of sale in determining the valuation of the livestock is just and equitable in the circumstance of these parties.

3. There was an issue as to the value of the business account of the husband with the Commonwealth Bank with the counsel for the wife submitting I should treat it at $5,000.00.  The evidence of the husband was that it had a value of about $150.00.  I will accept that valuation.

4. Similarly there was an issue about the fixed deposit in the name of the husband totalling some $559,000.00.  The wife’s counsel asserted that I should add the interest on that for the last few months.  It is not clear to me as to the precise dates of the reinvestment of those deposits.  If I do that for that sum I will need to adopt a similar approach in relation to the interest on the wife’s investments.  I do not have evidence before me in relation to any tax consequences in respect of such monies.  Accordingly I will be treating the fixed deposit as at the date of hearing, vis $559,000.00.

5. Money was lent to Mr K although it is not clear when the money was lent.  I accept that it seems to have been advanced subsequent to separation as it is not regarded by the husband, at least, as an asset at separation[2].  The husband deposes that he is not sure whether the money is to be repaid by Mr K.  That money became due and payable to the husband in May 2008.  The husband asserts:-

   [2] Paragraph 42 of husband’s affidavit.

   “[Mr K] was due to repay the money to me in the sum of $35,000.00 in May 2008”.

55. From the evidence I find this was an advance made by the husband and as such I will treat it as an asset in the sum of $35,000.00.

CONTRIBUTIONS

1. As I have indicated earlier in these reasons there was agreement between the parties and I determine that the contributions by the parties during the course of their relationship from 1983 until December 1985 was equal save and except the issue of the money received by the husband on redundancy from his employment with S Company in 1999.

2. The husband had started employment in 1964 and commenced contributing to a superannuation fund in 1968.  That superannuation fund rolled over to his employment with S Company.  The husband was paid $130,000.00 redundancy in 1999.  Part of that sum arose out of his pre relationship employment.  The amount of that accumulated value is not clear although I accept the submission of the wife’s counsel that it was significantly less than one half of that sum. 

3. In regard to the redundancy, the evidence of the husband, which I accept, was that he worked for R Limited from 1964 until 1995.  In 1995 he left R Ltd and worked for S Company.  He asserted, which was not challenged, that he received a payout from W Company of about $130,000.00 in about July 1999 and this payout represented accrued superannuation and employment entitlements since his commencement with R Ltd in 1964 (albeit superannuation from 1968).  He said this money was used for family purposes including paying out loans on the properties after some initial unsuccessful financial investments.

4. Part of this contribution was accrued over thirty one years (1968 to 1999) of which sixteen of those years where when the parties were cohabiting.  I have had regard to that initial contribution in so far as it related to the husband’s employment prior to the parties cohabitation in 1983.

5. At the commencement of cohabitation the wife asserted she had the following assets:-

Tasmanian Credit Union	$20,000.00
Tas PBS2	$24,414.00
Tasmanian Permanent Building Society (jointly with the husband)	$2,706.00
Tasmanian Permanent Building Society (solely)	$2,888.00
Interest on the above accounts
Furniture	$10,000.00
Subaru motor vehicle	$1,900.00

61. There is no objective evidence of the value of the furniture referred to above in the sum of $10,000.00 and there was no evidence of the wife’s expertise as to the value of this furniture.  I accept she had the furniture as set out in paragraph 16(6) of her affidavit, I do not accept the value attributed to that furniture by the wife.

62. As at the time of cohabitation in 1983, the husband owned a property “M” which had a value as at the commencement of the relationship of $255,000.00[3]. Albeit part of the value of this property includes some improvements and gardens which the single expert, Mr D valued at $16,000.00, which makes its value at cohabitation at about $239,000.00.  That property has been retained throughout the marriage.  The parties purchased E property (which has a present value $320,000.00) during the marriage.  The property, M,  has a present valuation of $1,120,000.00[4] (which includes the $16,000 in improvements).  M property was owned by the husband from 1972 (with some additions to it prior to marriage) and it was a significant contribution by him at the commencement of cohabitation.

[3] Exhibit “H7”.

[4]Exhibit “H1”.

63. The husband asserts that in addition he had a neighbouring property of about fifty acres, a sheep and  some farm equipment. In his affidavit the husband deposed he had a fixed deposit of $80,000.00.  In evidence the husband conceded that that sum was used to build a house on M property which house was included in the valuation by the single expert as at 1983 and is included in the valuation as at the date of the hearing.  I do not include that sum of $80,000.00 as it is part of the initial value of M property of $239,000.00. 

64. The husband’s initial contributions included a limited amount of farm equipment and breeding livestock in the form of sheep.

65. When the parties separated in 2005 they had sold another property and had a value in excess of one million dollars in a joint bank account.  The wife took $500,000.00 the husband $500,000.00.  The wife also withdrew $2,000.00 as a deposit on a new car and a further sum of about $22,000.00.  The husband took a further sum of about $50,000.00 and he gave evidence this money was used for the farm business.  I accept his evidence in that regard including his evidence about litigation in respect of the farm business.

66. The husband has operated the farm since separation and has continued the business of raising sheep cattle and some crops.  There is clearly some conflict between the parties in the years following separation.

67. The wife has spent about $80,000.00 since separation on various expenses including taxation, gym, furniture, car repairs and other living expenses.  The husband had paid to the wife about $1,100.00 per month until May 2006.

68. The wife had invested money in T Hire prior to purchasing the equipment referred to above.  Having regard to all of the evidence of the parties I am not convinced there was any “waste or inappropriate expenditure;” each of the parties has invested their monies in their own ways and I am satisfied that the contributions since separation remain equal.

69. The question therefore is to consider the adjustment of property bearing in mind the significant initial contributions of the husband and the particular retaining of that property throughout the marriage.

70. I have taken into account the factors mentioned in s79(2) of the Act and evaluated them. Having done so in accordance with the well known legal principles and having regard to all the facts and circumstances of these parties I determine that the property ought to be adjusted on a contribution basis as to 60% to the husband and 40% to the wife.

OTHER FACTORS

71. At the commencement of trial there was a claim by the wife for an adjustment in her favour in respect of the other factors.  At the end of the trial counsel for the wife quite properly abandoned that submission and there is to be no adjustment. Having heard the evidence I likewise determine that there should not be adjustment for the other factors.

JUST & EQUITABLE

72. Excluding the livestock an adjustment of 60% to the husband and 40% to the wife will mean that the husband retains the following:-

1.	“M” and “E” property (agreed value)	$1,440,000.00
2.	“C” property (agreed value)	$1,220,000.00
3.	Plant & equipment on the properties	$51,970.00
4.	Commonwealth Bank account in name of husband	$150.00
5.	Husband’s Commonwealth Bank fixed deposit	$559,000.00
6.	Husband’s furniture	$2,500.00
7.	Husband’s boat	$3,000.00
8.	Loan to Mr K	$35,000.00
9.	Holden Rodeo motor vehicle	$17,550.00
Total	$3,329,170.00

73. the wife will retain the following;-

10.	Wife’s interest in property at B	$195,000.00
11.	Half interest in mooring buoy at B	$5,000.00
12.	Wife’s Commonwealth Bank account no. 1	$27,775.00
13.	Wife’s Commonwealth Bank account no. 2	$930.00
14.	Wife’s Commonwealth Bank account no. 3	$7.00
15.	Wife’s Commonwealth Bank term deposit	$220,340.00
16.	Money invested by wife with Tasmanian Perpetual Trustees	$30,250.00
17.	Wife’s furniture (agreed value)	$20,000.00
18.	Telstra shares of husband, wife, and jointly owned (all to be transferred to the wife)	$11,830.00
19.	Wife’s Mercedes motor vehicle	$30,650.00
20.	Wife’s swap card collection	$35,000.00
21.	Wife’s jewellery	$20,000.00
22.	Wife’s RBF Tas Super	$226,430.00
Total	$823,212.00

74. To give effect to a 60/40 division between the husband and the wife would mean the husband would need to pay to the wife $837,740.80. 

75. This would mean that the net value of the assets retain by the husband, excluding livestock is $2,491,429.20 (being $3,329,170.00 less $837,740.80 giving a balance of $2,491,429.20 which represents sixty per cent of the pool). 

76. The wife would retain $823,212.00 plus be paid $837,740.80 by the husband making a total of $1,660,952.80, which is forty per cent of the pool of assets (excluding the livestock).

77. The husband has access to $559,000.00 to pay the wife leaving a shortfall of $278,740.80 which the husband can raise on borrowing against the rural properties or sale of assets. 

78. With regard to the livestock which has a value of $140,883.00, I will be making orders that the husband have the opportunity to purchase the wife’s share of either the whole or part of the livestock inventory.  Alternatively, the husband can elect to bring about the sale of the sheep and or the cattle and the net proceeds are to be divided as to sixty per cent to the husband and forty per cent to the wife.

79. Taking into account all of the relevant factors mentioned in s79(2) and having evaluated them I am satisfied the this result is just and equitable.

I certify that the preceding 79 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Legal Associate     :          

Date  :          30 July 2008.