TD and TD

[2008] FCWA 48

[2008] FCWA 48

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	TD and TD [2008] FCWA 48
CORAM	:	CROOKS J
HEARD	:	18-21 DECEMBER 2007
DELIVERED	:	8 MAY 2008
FILE NO/S	:	PT 1586 of 2006
BETWEEN	:	TD
Applicant/Husband
AND
TD Respondent/Wife
Catchwords:

PROPERTY SETTLEMENT - adjustment for s 75(2) factors

Legislation:

Family Law Act 1975, s 75 , s 79

Category: Not Reportable

[2008] FCWA 48

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Carr & Co
Respondent	:

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

Briese and Briese (1986) FLC 91-713
Weir and Weir (1993) FLC 92-338

[2008] FCWA 48

1 The dispute to be determined concerns the division of property between [Mrs TD] (“the wife”) and [Mr TD] (“the husband”).

Background

2 The husband was born on 22 April 1944 and is a handyman.

3 The wife was born on 9 March 1953 and is a teacher.

4 The parties began living together in June 1977 and married on 21 December 1980.

5 The wife left the parties’ former matrimonial home at [an address in the country

town] (“the [country] property”) on 7 September 2004. She returned in December 2004 and the parties thereafter lived separately under the one roof until October 2005 when the wife again left the [country] property. The wife returned in May 2006 and the parties thereafter lived apart whilst sharing the [country] property until December 2006 when the husband left and travelled overseas. Without including those periods when the parties lived separately under the one roof, the relationship lasted about 27 years.

6 Each of the parties have children from a first marriage who are now adults. They have no children together.

7 The [country] property was sold in December 2006 and after meeting selling

costs and repaying a mortgage debt, net proceeds of $622,563 were received. The parties each received $235,000 as an interim distribution pursuant to orders of the Court. Including interest to the date of trial, a balance of $159,363 remains on deposit pending the completion of these proceedings.

The evidence and materials relied upon at trial

8 The husband was represented by Mr Jones of counsel. He gave evidence and was cross-examined.

9 The husband relied upon his trial affidavit sworn 21 March 2007, his Financial

Statement sworn 21 March 2007, affidavit of [Ms STD] sworn 5 April 2007, affidavit of [Mr SM] sworn 5 April 2007 and affidavit of [Ms JL] sworn 4 May 2007.

10 The wife represented herself on the hearing. She gave evidence and was

cross-examined.

11 The wife also relied upon her trial affidavit sworn 21 March 2007, her Financial

Statement sworn 21 March 2007, her previous affidavits filed in the interim applications, affidavit of Joanne Marjorie Bowen sworn 29 March 2007, affidavit of [Ms HC] sworn 31 March 2007, affidavit of [Ms BD] sworn 3 April 2007, affidavit of [Ms LD] sworn 25 July 2007, affidavit of [Ms GH] sworn 16 July 2007, affidavit of [Ms KM] sworn 30 March 2007, affidavit of [Mr KM] sworn 3 April 2007, affidavit of [Ms MAM] sworn 29 March 2007, affidavit of [Ms AP] sworn 28 March 2007,

[2008] FCWA 48

affidavit of [Ms VS] sworn 29 March 2007, affidavit of [Ms DS] sworn 3 April 2007, affidavit of [Ms MPT] sworn 3 April 2007 and affidavit of [Ms SATD] sworn 17 July 2007. The wife also sought to rely upon the previous affidavits sworn by the husband in the interim applications.

Each party’s credibility

12 The wife was quite meticulous in the preparation of her material for trial and she

attempted to give her evidence in an honest way. There were, however, aspects of the husband’s evidence where I considered him less than frank and evasive, particularly in relation to his income. I will deal with these matters when I consider the s 75(2) factors.

Position of the parties at trial

13 Mr Jones submitted that the husband should receive 55% of the superannuation and non-superannuation assets.

14 The wife submitted that the assets should be divided equally between the parties.

The law
15	Property cases are governed by s 79 of the Family Law Act 1975.

16 The determination of an application pursuant to s 79 involves a four step process which can be summarised as follows:

(a)	to ascertain the property of the parties;
(b)	to determine the contributions made by the parties to the property;
(c)	to consider the other factors set out in s 79(4) and s 75(2) which include the parties’ future needs, income earning capacities, responsibilities and resources; and
(d)	to finally reach a decision that is just and equitable in all the circumstances.

The assets

17 The parties were able to reach agreement as to the list of assets for the purposes

of my determination, other than in relation to an addback claimed by the wife for the superannuation draw-downs made by the husband since the parties’ separation. The list of assets includes various other addbacks which were agreed upon by the parties.

18 The following list of superannuation and non-superannuation assets sets out the parties’ agreement:

[2008] FCWA 48

Description	Husband	Wife
Assets
$159,363 being the balance of sale proceeds from, [the former country home] (held in trust)	79,681	79,681
Distribution of sale proceeds from [the former country home] pursuant to orders for partial property settlement made 14 December 2006	$235,000	$235,000

Agreed addback for mortgage repayments from wife on behalf of husband	7,000
Agreed addback to adjust for loan amount deducted from wife’s share of funds on settlement of property	10,000
Agreed addback for amounts deducted from loan account by husband for his personal use	18,800
Agreed addback for cash amounts drawn from loan account at October 2004 for parties’ personal use	44,000 40,000
Proceeds of sale of [the motor vehicle]	1,200
Husband’s furniture and antiques	4,000
Husband’s tools, van and equipment	3,000
Wife’s furniture	1,010
Chairs and table to be retained by husband	400
Agreed addback to husband’s share of assets for penalties arising from the non-payment of mortgage loan by husband	4,000

Total of non-superannuation assets	407,081	355,691
Superannuation
Wife’s superannuation	67,310
Husband’s superannuation with Summit	46,710
Total superannuation assets	46,710	67,310
Total assets	453,791	423,001

[2008] FCWA 48

Withdrawals of superannuation

19 At paragraph 25 of the husband’s trial affidavit, he says:

“Since 7 September 2004 I have withdrawn $25,630 (gross) from my superannuation. My superannuation draw downs are treated as assessable income to me in the year in which they are drawn. I incurred tax on those withdraws, which I have paid.”

20 Exhibit 15 is a statement from [RMGFS] which gives the following break-down of the withdrawals totalling $25,630:

28 September 2004	$5,000
1 June 2005	3,000
7 December 2005	2,000
10 May 2006	15,630.34

21 Whilst the wife in her submissions referred to $30,000 as being the amounts

withdrawn, I intend to use the figure of $25,630 which is supported by documentation
from [RMGFS] which manages the husband’s superannuation plan.

22 At paragraph 7 of the husband’s affidavit sworn 14 December 2006, the husband says further in relation to the superannuation draw downs:

“Despite the wife’s assertions in paragraph 11, I do not have funds readily available for my own use. I have drawn on my superannuation to assist in meeting living expenses (including payment of joint obligations such as the mortgage) and my legal costs. The wife has complained about those withdrawals and seeks that my superannuation be included in the asset pool at its original value. This will be an issue for trial.”

23 The wife submits that it was unreasonable for the husband to draw down on his

superannuation to her prejudice and that the amounts withdrawn should be added back to the asset pool. Mr Jones submitted for the husband that there is no history in this case of wasteful spending of funds, that the amounts involved are relatively modest and that the husband was not cross-examined as to how he specifically utilised the funds withdrawn from his superannuation.

24 The husband says he “earnt very little” during the period he drew down on his

superannuation fund. The wife disputes the husband’s evidence about his earning
capacity and financial circumstances when the draw downs were being made.

25 At paragraph 18 of the husband’s affidavit sworn 1 June 2006 the husband says:

“I am presently attempting to meet the mortgage payments with respect to the home. The outstanding mortgage is approximately $124,000. The mortgage payments are approximately $840 per month. The mortgage is presently in arrears by a few thousand dollars. The wife made one

[2008] FCWA 48

payment to the mortgage of $380.84 on 20 April 2006. She has otherwise not contributed to the mortgage payments since she left in September 2004.”

26 The husband conceded his evidence the wife had made only one payment of $380.84 to the mortgage on 20 April 2006 since she left the home in September 2004 was incorrect. In his trial affidavit the husband acknowledges that the wife made payments of more than $10,000 to the mortgage account. The husband agreed he made no payments to the mortgage account from October 2004 to April 2006 notwithstanding that for all of this period he occupied the [country] property. He explained the errors in paragraph 18 of his affidavit sworn 1 June 2006 by saying that he failed to check the mortgage statements he had received before making the statements in his affidavit. Whilst the husband may not have been trying to deliberately mislead the Court in that passage of his affidavit, he was certainly careless in the presentation of parts of his affidavit material.

27 The husband further acknowledges that at about the time of the parties’

separation, he had about $19,000 in savings or cash available to him and was living
rent free in the [country] property.

28 I do not accept it was necessary nor reasonable for the husband to draw down on

his superannuation to meet his reasonable living expenses given his level of savings and his occupation of the [country] property, particularly in circumstances where I am satisfied he continued to work following the parties’ separation or at least had the capacity to work.

29 Apart from the husband’s claim that he drew down on his superannuation to

assist in meeting living expenses, he also refers at paragraph 7 of his affidavit sworn 14 December 2006 to using the draw downs to meet legal expenses. I was provided with no details of the amounts paid by the husband in legal fees. In my opinion where the husband is claiming that funds withdrawn after separation which reduced the value of his superannuation fund should not be added back, then it is for him to fully disclose precise details of how these funds were spent. The superannuation fund from which the husband made the withdrawals was clearly an asset in which the wife had an interest and I consider it appropriate to notionally addback to the asset pool funds withdrawn by the husband from his superannuation fund. This is particularly so in circumstances where the funds withdrawn have been used, at least in part on paying the husband’s legal fees. Given that the funds withdrawn from the husband are treated as assessable income in the year in which they are withdrawn, I do not intend, however, to addback the full amount of $25,630. In the absence of evidence as to the precise amount of tax paid by the husband as a result of the draw downs, I intend to addback as a notional asset of the husband the sum of $20,000.

[Antiques]

30 The husband has a collection of [antiques] which he says he inherited from the

estate of his late father in around 1991. The parties have agreed that this collection should not be included in the list of assets to be divided between them but be taken into account when I consider the s 75(2) factors.

[2008] FCWA 48

Contributions

31 Agreement was reached between the parties that I should assess their

contributions to both the superannuation and non-superannuation assets as being
equal.

32 During this long marriage, both parties made significant financial and

non-financial contributions. I am satisfied both of them worked hard throughout their relationship and it was as a result of their joint efforts that the parties were able to acquire the assets which are to be divided between them.

33 I regard the parties’ agreement that contributions should be assessed as being equal as the correct outcome.

Section 75(2) and other factors

34 The husband seeks a 5% adjustment in his favour. The wife says there should be

no adjustment.

35 I now turn to consider these factors:

(a) the age and state of health of each of the parties;

36 The husband is 64 years of age and the wife is 55 years of age. The husband

says he suffers from a number of health problems which limit his ability to work. In particular, the husband described having stress related problems for which he is receiving ongoing counselling and having undergone an exploratory operation about six weeks prior to the hearing for abdominal and bowel problems. The husband says he has been diagnosed with a cyst on his kidney and kidney stones and has been prescribed medication for this condition. He is also he says experiencing back problems which prevent him from undertaking heavy lifting work.

37 In her evidence, the wife acknowledges that the husband did injure his back

some 20 years ago which necessitated him taking time off work at that time. The wife also accepts the husband may also be suffering from stress associated with the breakdown of the marriage from which the wife says she has also suffered.

38 The wife does not, however, accept that the husband is unable to continue

working as a handyman and says there is no reason associated with the husband’s
health why he could not work five days a week.

39 The husband produced no medical evidence to suggest that he is suffering from

any health problems which might prevent or impact on him working in the future. I am satisfied that whilst the husband has suffered from problems associated with stress and has had other health problems, these do not prevent him from continuing to work as a home handyman in the future, particularly if the husband avoids tasks involving heavy lifting.

40 The wife is 55 years of age and considers she is in good health, apart from stress

associated with these proceedings. The wife describes how it was necessary for her to

[2008] FCWA 48

take an entire term off from her teaching work about three years ago because of the stress associated with her employment. Like the husband, the wife says that it has been necessary for her to consult a medical practitioner leading up to the trial because of health problems. The wife does not, however, suggest her health is such as would prevent her from working as a teacher in the future.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

41 The husband says that his average income from work as a handyman is $20,000 to $25,000 per annum. He says his work is irregular and comprises small jobs for which he is paid $25 per hour.

42 The wife does not accept the husband’s evidence as to his level of earnings and

says he does “cash jobs” for which there are no invoices and asserts the husband’s
declared income is less than his true income.

43 Prior to the trial, the husband was asked to produce his work invoices and

a complete set of bank statements to enable the wife to verify the husband’s level of earnings. The husband acknowledged that the invoices and all the bank statements requested by the wife were not supplied.

44 The husband says that his accountant [Mr G], has his work invoices. The

husband accepts he could have asked his accountant to supply them but did not. At another point in his evidence, the husband said that he was “not sure” where his invoices were and he had tried to find them.

45 Prior to trial, the wife issued a subpoena to the husband’s accountant requiring

him to attend to give evidence at the hearing. The accountant wrote to the Court advising that he would be overseas at the time of the hearing and could not attend. The husband confirmed that his accountant was out of the jurisdiction, holidaying [overseas] at the time of the trial. The husband says, however, that he had discussions with his accountant concerning the wife’s request for information before [Mr G] left for [overseas] and notwithstanding this discussion, no invoices or other documents were made available to the wife for the hearing.

46 The husband agreed that he had carried out various jobs for [Mr G] at his

property for which he was paid $25 cash per house but says he could not remember
how much work he had completed for [Mr G].

47 The husband’s failure to disclose fully his work invoices and other documents fell far short of his obligations to make proper disclosure in these proceedings.

48 When dealing with the obligation on parties to disclose their financial circumstances, Smithers J in Briese and Briese (1986) FLC 91-713 at 75,180–75,181 said:

“I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations,

[2008] FCWA 48

and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding …

In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.”

49 In relation to non-disclosure of assets, the Full Court in Weir and Weir (1993) FLC 92-338 stated at 79,593 as follows:

“… once it has been established that there has been a deliberate non disclosure, …, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”

50 I regard the husband as having set out to deliberately conceal from the wife the

financial records of his earnings. In my opinion, the wife did her best under the circumstances to obtain proper disclosure as to the husband’s financial circumstances but was prevented for getting access to the documents by the actions of the husband.

51 The wife subpoenaed [Mr M] to give evidence. [Mr M] told how the husband

carried out timber work on his property over a period of two or three months in late 2004 for which he paid the husband a set daily rate of $250. According to [Mr M], whose evidence I accept, he paid the husband in cash and no invoices for the work were made up. [Mr C] was also subpoenaed told of timber work carried out for him by the husband who was paid a cash rate of $20 per hour for the work done.

52 [Mr C] also gave evidence under subpoena. The husband, he says, first worked

for him in early February 2006. He described how the husband replaced a veranda at his home. [Mr C] was invoiced for the husband’s work between February and May 2006.

53 On a number of the jobs I was told about, the husband’s brother, a builder, has been assisting the husband with work undertaken in the [country] area.

54 It was put to the husband he could earn approximately $50,000 per annum if he

worked full-time. He agreed. The husband also acknowledges he has not been advertising for work and he could also seek work in communities away from

[2008] FCWA 48

[the town], for example in [the nearby town], if there was insufficient work for him in
[his local area].

55 I am satisfied that the husband is a skilled and capable handyman who has good

contacts for work in the [local country] area and is well able to adequately support himself from his work. The absence of proper disclosure and the evidence of cash payments makes it difficult to determine the husband’s true level of income from his work as a handyman. I consider, however, the husband has the capacity to earn between $35,000 and $45,000 per annum.

56 The wife is a qualified teacher and is on temporary staff with the education

department. At the time of the hearing the wife was not working and was living from capital. The wife described how she is selected for work from a pool of casual teachers in the location in which she lives and there are no guarantees of employment. The wife says that since the separation she has averaged about three days work each week during school terms. The wife says that it would be necessary for her to move to a remote location if she was to seek permanent employment with the education department which she would not want to do. I accept the wife’s evidence in relation to her teaching work.

57 The wife says that her preference is to look at other career options, rather than

continue her teaching career. Whilst the wife’s preference is to cease work as a teacher, I am satisfied she is nonetheless a talented and highly regarded teacher who has the capacity to maintain a teaching career in the future for at least three days each week. I do not, however, in the circumstances, consider it reasonable for the wife to be expected to move to a remote location in order to qualify for permanency with the education department. In my opinion, I consider the wife could reasonably expect to earn an average weekly income in the region of $750 per week as a temporary teacher. If the wife does not wish to continue teaching, I am nonetheless satisfied she has strong organisational and other skills which would enable her to find work in other positions. The wife played a significant role in the [accommodation] business operated by the parties at [the country property] where she was responsible for handling the bookings and marketing the business. [Ms DS] gave evidence of her dealings with the wife in her capacity as manager of the [country town] Tourist Bureau and spoke highly of the wife’s marketing skills in promoting the [business] and her general work efficiency.

58 In summary I am satisfied that both parties have the capacity to adequately

support themselves but this is not a case where I consider there is any significant disparity in the present income earning prospects of the parties. However, given the parties’ age difference, the wife has the capacity to work for a longer period than the husband.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

59 Neither party has the care of a child of the marriage under 18 years.

(d)  commitments of each of the parties that are necessary to enable the party to support:

[2008] FCWA 48

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

60 The wife is supporting herself from her income or resources. The husband is

supporting himself from his income or resources. Neither party has a duty to maintain another person or child. Since the sale of the [country town] property and the interim release of funds to each of the parties, the wife has purchased a home in [another regional area of the state] subject to a mortgage. The wife says that her son lives in the [new home] and pays rent of $230 per week to assist her with the mortgage. The release of further funds to the wife following my judgment should enable the wife to better establish herself in the property she has acquired. The husband resides with [Ms JL] and he pays her $200 per week for his food and accommodation.

(e) the responsibilities of either party to support any other person;

61 This paragraph does not require any additional consideration. Neither party has responsibilities for the support of any other person.

(f)

subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)	any law of the Commonwealth, of a State or Territory or of another country; or
(ii)	any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid
to either party;

62 Neither party discloses any eligibility to receive any government pension or

benefits. Both parties have superannuation. Whilst there is an imbalance in the value of the parties’ superannuation entitlements, I do not propose to take that into account as the superannuation interests of the parties have been included in the pool of assets.

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

63 The parties enjoyed a reasonable standard of living during their long relationship

and should have sufficient income and capital available to them for each party to maintain a reasonable standard of living in the future. Since the parties’ separation, the husband has enjoyed separate overseas holidays to [various countries] with [Ms JL]. The wife has travelled to [Asia].

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake

[2008] FCWA 48

a course of education or training or to establish himself or herself

in a business or otherwise to obtain an adequate income;

(ha)	the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)	the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)	the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)	the need to protect a party who wishes to continue that party’s role as a parent;

64 These paragraphs do not require consideration. Neither party seeks maintenance

from the other.

(m) if either party is cohabiting with another person–the financial circumstances relating to the cohabitation;

65 The husband resides with [Ms JL] in the home she owns [in the town]. [Ms JL]

is employed on a full-time basis as a teaching assistant and is 60 years of age. The husband has lived with [Ms JL] since April 2006. They have an intimate relationship, although the husband says it is not a de facto relationship.

66 [Ms JL] confirmed the husband pays her $200 per week which covers the

husband’s share of the household food and utilities. She otherwise keeps her finances separate from those of the husband. There is no reason for me to doubt the evidence of [Ms JL] who appeared to be a credible witness. She says the husband and herself have made no plans for a future together but she is not aware of any plans the husband has to leave the relationship. She expressed no plans or desires to separate from the husband. The husband describes his relationship with [Ms JL] as a happy one and it does appear that he and [Ms JL] are in a committed relationship. They have enjoyed overseas holidays together on four separate occasions since the husband and wife separated. They socialise together as a couple, mix with family and friends and have lived together for an extended period. Whilst I make no findings as to whether the husband’s relationship with [Ms JL] should properly be termed a “de facto relationship”, the circumstances of that relationship enable the husband to reside in a comfortable home with his food provided for a relatively modest weekly payment. The wife has no such benefits, although these factors alone do not put him in a significantly better financial position than the wife.

67 The wife does not reside with another person with whom she has a relationship.

She does, however, have an intimate relationship with [Mr KL] with whom she spends time on a regular basis. The wife describes [Mr KL] as having being very supportive to her. Her wish is for the current arrangement, where she and [Mr KL] live in

[2008] FCWA 48

separate homes, to continue. [Mr KL] appeared to be a frank and honest witness. He describes that he has a number of issues in his life that need to be resolved before he could consider making any commitment for the future. [Mr KL] says that he does not have regular work, has only limited means and is looking to establish a business venture. He says that when he and the wife go out together they each pay their own way. It is clear that the wife and [Mr KL] have a very supportive and romantic relationship but there does not appear to be any financial consequences to the wife of that relationship.

(n)

the terms of any order made or proposed to be made under section 79 in relation to:

(i)	the property of the parties; or
(ii)	vested bankruptcy property in relation to a bankrupt party;

68 The assets of the parties have been set out earlier in these Reasons together with

my assessment of the parties’ contributions to those assets. I now turn to consider issues relating to antique [antiques] which does not form part of the list of assets for division.

[Antique] collection

69 At paragraph 13 of the husband’s trial affidavit, he says he received the

[antiques] from the estate of his late father on the understanding that he is to pass it to his children on his death. The husband further says his intention is to leave the [antiques] to his children equally. The wife does not suggest she has made any contributions to the [antique] collection but asserts the collection is an asset which the husband can deal with as his own property and in the past the husband has agreed to sell part of the collection.

70 The husband’s former wife, [Ms STD] says that after her marriage to the

husband in 1970 the [antiques were] given to the husband by his mother. This she says was with the instructions that it be passed on to the husband’s eldest son. [Ms STD] confirmed that to her knowledge the [antique] collection has been in the husband’s family for generations and has been passed down to the eldest son of each generation. The husband’s former wife appeared to give her evidence as best she could recall. The husband also called [Mr BJ] who says that he is able to recall an evening in around late 1977 when the husband and the wife were at his home and the [antiques were] discussed. [Mr BJ] says that he was told by the husband on this occasion that the husband’s mother “had recently passed the [antiques] on to him as the eldest son”. He remembers the husband saying words to the effect “it’s my mother’s wish that I be custodian of the [antiques] and when I decide the time is right, I am to pass it on to my eldest son.” [Mr BJ] further says he can recall the husband saying he did not consider that the [antiques] “belonged” to him and that he had two brothers “and he didn’t think it right that he be advantaged over his brothers by ownership of the [antiques]”. [Mr BJ] remembers the wife as being present when

[2008] FCWA 48

these comments were made and getting upset on the night because she wanted to sell
the collection. I accept that [Mr BJ] gave evidence to the best of his recollection.

71 Whilst the wife has a different recollection to [Mr BJ] of the events which took place on that evening, I take into account that it occurred some 30 years ago.

72 The wife relies upon the affidavit of [Ms GVH] who says she met the parties

over 20 years ago when she was the proprietor of [an antiques store in Perth]. [Ms GVH] has many years of experience in dealing with [antiques] and is now engaged in appraising and selling [antiques] both in Australia and overseas. She says she regularly prepares valuations for insurance purpose for probate and for law firms. I accept the expertise of [Ms GVH] and the evidence set out in her affidavit which was not challenged by the husband.

73 [Ms GVH] says that she accepted a consignment of [antiques] which was

brought to her by the parties and that she discussed with both of them the prices for which the [antique] items were to be sold. She recalls having had a number of conversations with the husband and the wife both in person and on the telephone in relation to the sale. Whilst [Ms GVH] did not have invoices pertaining to the sale, she says she is able to recall specific items that were sold for a “substantial amount”. Having viewed photographs of some of the items which remain in the collection [Ms GVH] says “I consider the bulk of it to be substantial value”.

74 At paragraphs 17 and 18 of [Ms GVH]’ affidavit she says:

“17.	There are …. [a listing of the various pieces…..]
18.	In my opinion even valued conservatively, [antiques] of that age and quality would be worth some tens of thousands of dollars,

75 [Ms GVH] is in no doubt of the husband’s involvement in the sale of the

[antiques]. She says at paragraph 7 of her affidavit “it is to my certain knowledge he
was both aware of, involved and in absolute agreement with the sale of the goods”.

76 The husband remembers visiting [Ms GVH] at [her antique business]. He could

not recall whether she valued the collection. The husband denies, however, that he had any discussions with [Ms GVH] about selling of any of the items. He says the first he became aware of items having been sold from the collection was when he questioned the wife about the deposit of funds in the parties’ joint account and after noticing some items of [the antiques] were missing. According to the husband, it was only then the wife told him of the sale of the items of [the antiques]. I do not accept the husband’s evidence. I am satisfied that both the husband and wife requested that [Ms GVH] sell a quantity of the [antiques].

Conclusion as to ownership of the [antiques]

77 The basis upon which the [antiques] were passed to the husband is far from

clear.

[2008] FCWA 48

78 There is inconsistency between the evidence of the husband’s former wife and

the husband’s own evidence as to whether the testator’s intention was that the husband hold the [antiques] for his first born son or for all of the husband’s children. There is further inconsistency between the husband’s evidence and what [Mr BJ] recalls the husband telling him in 1977 that the [antiques are] to be passed on to the husband’s eldest son.

79 The husband produced no will or other documentation to support what he says as to his late father’s intentions in relation to the [antiques].

80 The fact that the husband and wife both contacted [Ms GVH] to sell items from

the collection is consistent with the husband having beneficial ownership of the
[antiques].

81 It is for the husband to satisfy me that he is not the legal and beneficial owner of

the [antiques]. On the evidence presented, I am not satisfied there is any legal restraint which would prevent the husband from selling the remaining [antiques] and retaining the proceeds for his own benefit.

Value of [the antiques]

82 To establish the value of the [antiques] which remain with the husband, he

produced an unsigned handwritten list setting out some 43 sets items with a total value of approximately $20,000. The husband says this handwritten list was prepared by antique dealers “Bakers”. The author of the handwritten list was not available to verify the values, nor was the list prepared on the firm’s letterhead. It is not accepted by the wife. In the circumstances, I do not give this document any significant weight. Whilst I accept the evidence of [Ms GVH], she could not be specific as to the value of the collection not having recently inspected the individual pieces which remain with the husband. In conclusion, I am not satisfied the collection is worth approximately $20,000. Based on the [Ms GVH] affidavit, the collection may be worth significantly more than this amount.

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

83 This has no relevance.

(o) any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and

84 This has no relevance.

(p) the terms of any financial agreement that is binding on the parties.

85 This has no relevance.

[2008] FCWA 48

Conclusion

86 After considering the s 75(2) and other factors, I am satisfied an adjustment of

2% is called for in the husband’s favour. In reaching this decision, I have taken into account in particular the age difference of the parties and the wife having the capacity to continue working after the husband has retired. Having said that the wife is 55 years of age and I do not anticipate she will have many years of reasonably paid employment ahead of her after the husband ceases work.

Just and equitable

87 The effect of my decision on contributions and the other factors is that the

husband shall be entitled to receive 52% of the assets or $466,332 and the wife shall
be entitled to receive 48% of the assets or $430,460.

88 In my view, in all the circumstances of this case, I am satisfied that such an outcome is just and equitable.

Effect of orders

Description	Husband	Wife
Assets
Division of the balance of proceeds from sale of [the country house] (held in trust) to achieve a 52/48% division	72,222	87,140
Distribution of sale proceeds from [the country house] t pursuant to orders for partial property settlement made 14 December 2006	$235,000	$235,000

Agreed addback for mortgage repayments by wife on behalf of husband	7,000
Agreed addback to adjust for loan amount deducted from wife’s share of funds on settlement of property	10,000
Agreed addback for amounts deducted from loan account by husband for his personal use	18,800
Agreed addback for cash amounts drawn from loan account at October 2004 for parties’ personal use	44,000 40,000
Proceeds of sale of [the motor vehicle]	1,200

[2008] FCWA 48

Husband’s furniture and antiques	4,000
Husband’s tools van equipment	3,000
Wife’s furniture	1,010
Chairs and table to be retained by husband	400
Agreed addback to husband’s share of assets arising from penalties for non-payment of mortgage loan by husband	4,000
Addback of amounts drawn down from husband’s superannuation	20,000

Total non superannuation assets	419,622	363,150
Superannuation assets
Wife’s superannuation	67,310
Husband’s superannuation with Summit	46,710
Total superannuation	46,710	67,310
Total assets	466,332	430,460

89 The orders I propose to make subject to any submissions as to the form of those orders are as follows:

1. The balance of funds resulting from the settlement of the sale of [the country house] be applied in the following manner:

(a)	in payment to the husband of $72,222;
(b)	in payment to the wife of $87,140; and
(c)	any surplus of funds be divided in proportions 52% to the husband and 48% to the wife.

2. Any interest of the wife in the following do vest in the husband:

(a)	any funds standing to the husband’s credit in banks, building societies, credit unions or other financial institutions;
(b)	any motor vehicle in the husband’s possession;

[2008] FCWA 48

(c)	the furniture and chattels in the husband’s possession, including the [antiques] and tools;
(d)	the proceeds received from the sale of the [motor vehicle];
(e)	the husband’s superannuation entitlements; and
(f)	any other assets in the husband’s possession or control.

3. Any interest of the husband in the following do vest in the wife absolutely:

(a)	any funds standing to the wife’s credit in banks, building societies, credit unions or other financial institutions;
(b)	any motor vehicle in the wife’s possession;
(c)	any furniture and chattels in the wife’s possession save for the chairs and table which are to be retained by the husband;
(d)	any wife’s superannuation entitlements; and
(e)	any other assets in the wife’s possession or control.

4. The husband pay and indemnify the wife and keep the wife indemnified in relation to:

(a)	his income tax liability for the year ended 30 June 2005, 30 June 2006 and 30 June 2007;
(b)	any other income tax liability of the husband; and
(c)	any other personal liability of the husband including personal loans, credit cards or any other debt incurred by the husband.

5. The wife pay and indemnify the husband and keep the husband indemnified in relation to:

(a)	any mortgage taken out by the wife in her name;
(b)	the wife’s tax liability (if any) for the year ended 30 June 2005, 30 June 2006 and 30 June 2007;
(c)	any other tax liability; and
(d)	any other personal liability of the wife including credit cards, personal loans or any other debts incurred by the wife.

6. The applications of the parties otherwise be dismissed.

[2008] FCWA 48

I certify that the preceding [89] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate