Tindale and Tindale

[2012] FamCA 13

FAMILY COURT OF AUSTRALIA

TINDALE & TINDALE [2012] FamCA 13

FAMILY LAW – PROPERTY – consideration of contributions in a long marriage with a significant period after separation

Family Law Act 1975 (Cth)

APPLICANT: Mr Tindale

RESPONDENT: Ms Tindale

FILE NUMBER: CSC 44 of 2010

DATE DELIVERED: 12 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 14 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms N Wilson

SOLICITOR FOR THE APPLICANT: Preston Law

COUNSEL FOR THE RESPONDENT: Ms Wilson

SOLICITOR FOR THE RESPONDENT: MLDG Lawyers

Orders

1. Pursuant to s 79 Family Law Act1975 (Cth), an order be made in accordance with paragraphs 2 to 10 below.

2. Within two (2) months of the date of these orders, the wife pay to the husband the sum of $200,000.

3. Pursuant to s 90MT(1)(a) Family Law Act (Cth), whenever a splittable payment becomes payable in respect of the wife’s interest in the Y Superannuation Fund, the husband shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount, at the date of these orders, in the sum of $100,000 and that there be a corresponding reduction to the entitlement the wife would have had in the Y Superannuation Fund but for this order.

4. The operative date for paragraph 3 will be two (2) months after the date of these orders.

5. Contemporaneously with the wife complying with paragraph 2, she be declared to have sole right, title and interest in the property known as … C Street, F (“the F property”) which is more particularly described as Lot … on Registered Plan …, County of …, in the Parish of … and contained in the title reference number … .

6. Contemporaneously with the wife complying with paragraph 3, the husband discharge the debt of approximately $18,000, being the joint home equity mortgage.

7. Contemporaneously with the operation of paragraph 5, the husband give vacant possession of the F property and remove his chattels and possessions from the home leaving it in good order and condition.

8. Each party retain sole right, title and interest in any monies or assets which are in their respective possession or control.

9. In the event the wife within a period of two (2) months fails to pay to the husband the sum of $200,000 pursuant to paragraph 2, then the parties will do all things and sign all necessary documents to sell the F property at a price to be agreed and failing agreement, at a price to be determined by a further valuation carried out by Mr J or his nominee and that the net proceeds of sale be distributed as follows:

   9.1.Agent’s commission, legal costs and other costs of sale;

   9.2.48.8 percent to the husband from which sum the husband will discharge the home equity mortgage; and

   9.3.51.2 percent to the wife.

10. Contemporaneously with order 2, the wife transfer to the husband all her interest in Company 1 shares and Company 2 shares. 

11. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act (Cth) to execute such documents on behalf of such party.

12. Leave granted to either party to relist this matter in relation to the implementation of the order relating to the sale of the F property.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 44 of 2010

Mr Tindale

Applicant

And

Ms Tindale

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties cohabited for nearly 28 years and separated 10 years ago.  In part they organised their affairs pursuant to an ante-nuptial agreement signed in South Africa in January 1976. The husband has now brought proceedings to alter the property of the parties.

APPLICATIONS

1. During final submissions, the position of the parties crystallised as to what orders they were actually seeking.  Based upon the balance sheet, the husband wanted an order which was very close to a 50/50 division of the overall assets.  He wanted this achieved by him moving out of the C property (a property registered in the sole name of the wife, but one which he has been living in for the last ten years), and for the wife to transfer to him, assets in the sum of $350,000 ($300,000 in cash and $50,000 by way of a super splitting order).

2. The husband by way of machinery provisions wished that if the wife did not pay him the sum of $300,000 (as part of the transfer of $350,000 worth of assets to him), then the C property would be sold and from the net proceeds of the sale he receive $300,000 and if there was a shortfall in cash from the sale, then any shortfall be made by increasing the super splitting order from a base amount of $50,000 to whatever base amount was necessary to receive $350,000 worth of assets to the husband on an overall basis.  

3. At the end of the hearing, the wife’s primary position had become that she also joined in the application that she keep the C property.  She wanted a 55/45 split in her favour which meant that she would transfer to the husband assets to the value of $300,000.  She asked that this be by way of her raising cash funds of $200,000 and transferring $100,000 of her superannuation by way of a super splitting order to the husband. 

4. The wife had an alternate position that the husband keep the C property and that he pay her $110,600 by way of raising funds in cash.  The wife did not want any of the husband’s superannuation transferred to her. 

5. The wife by way of an enforcement provision indicated that she would want a percentage of the overall value of the C property to be given to the husband with her retaining a percentage on a default sale.  On her application, if she failed to pay the husband $200,000, then he would receive 48.8 percent of the net proceeds of sale ($200,000/$410,000). 

DOCUMENTS RELIED UPON

1. The applicant husband relies on the following:

   7.1.Amended Initiating Application filed 24 June 2011;

   7.2.Affidavit filed  28 October 2010;

   7.3.Affidavit filed 26 March 2010; and

   7.4.Financial Statement filed 26 March 2010.

2. The respondent wife relies on the following:

   8.1.Amended Response filed 21 July 2011;

   8.2.Affidavit filed 1 December 2010;

   8.3.Affidavit filed 24 May 2010;

   8.4.Financial Statement filed 24 May 2010; and

   8.5.Affidavit of Ms M filed 1 December 2010.

3. The parties also relied upon:

   9.1.Joint Chronology; and

   9.2.Single Expert Report of Mr J filed 8 July 2011.

SHORT HISTORY

1. The husband was born in 1948 and is now aged 63.

2. The wife was born in 1949 and is now aged 62.

3. The parties commenced cohabitation in late 1973.

4. The parties married in 1976.

5. The parties’ child B was born in 1981 and is now aged 30.

6. The parties separated in September 2001. They cohabited for 28 years. They divorced in March 2010 and have been now apart 10 years.

CREDIT

1. Many of the differences in the parties’ evidence contained in their affidavits were not the subject of testing by cross examination by either the husband or the wife or if they were, neither party’s version was significantly shaken in any way that would allow me to make a determination as to what version should be adopted. Overall however, I have taken the view that where the parties are apart in relation to questions of fact, those controversies are not of such significance, either individually or cumulatively, that would lead me to make any serious adjustment in favour of one party or the other had I resolved those controversies. Having said that, as will be seen, I do accept the wife’s argument that some adjustment should be made for the fact that the husband had the exclusive use of the major matrimonial asset for a ten year period and I have also accepted her mother made not insignificant contributions of cash into the marriage on her behalf.  I accordingly make no findings about the credit of either of the parties. 

2. The wife’s sister was not required for cross examination and I therefore accept the evidence in her affidavit on the basis that it was not challenged.

DETAILED CHRONOLOGY

1. The husband was born in 1948.

2. The wife was born in 1949.

3. The parties commenced cohabitation in late 1973.

4. In January 1976 the parties entered into a prenuptial agreement in South Africa.

5. The parties married in January 1976.

6. The parties immigrated to Australia in December 1979. The husband says the parties brought $45,000 with them and the wife claims they brought $25,000 to $30,000.

7. On 7 May 1980 the husband and wife purchased the T property for $9,400 (the husband’s March affidavit says $5,000). A loan of $23,000 was obtained from ANZ. The parties built the house for $40,000 (the husband’s March affidavit says $30,000). The property was registered in the wife’s name with the husband saying this was an asset protection strategy for the possibility that the husband would start a business. The wife said this arrangement was actually due to their ante-nuptial agreement.

8. The child was born in June 1981.

9. In August 1983 the parties purchased the C property land for $21,000 (the wife says $22,000) with the intention of building a house for the wife’s mother to live in when she immigrated to Australia. The husband said the parties used $6,400 provided by the wife’s mother and the rest from joint savings. The wife denies this version of financial events (see below) saying her mother funded the full deposit. In 1984 a house was built with a loan of $37,000 from Citibank. The wife’s mother did not end up living in this property. The house was tenanted until 2001 with the rental income paying the majority of loan repayments. The husband said residual payments were met from the parties’ funds while the wife said the rental fully covered any outgoings. The property was in the name of the wife only.

10. Between 1985 and 1988 the wife says the T property mortgage was paid in full, from funds provided by the wife’s mother of $15,000. The husband disagrees and says the mortgage was paid by remortgaging the C property and utilising savings. The wife claims the C property mortgage was drawn down in 1996 for an overseas trip.

11. In 1998 the parties enrolled in tertiary courses. The husband worked full time for the first year of his degree and part-time for the remainder. The wife studied full time during her course.

12. In October 1999 the S property was purchased for $231,000. The entire purchase price, fees and duties were borrowed with a loan of $254,000. Rental income provided part payment for some of the loan repayments. The property was held in shares 99% to the husband and 1% to the wife.

13. In August 2000 the C property loan was repaid. The wife says the parties used $13,000 provided by the wife’s mother and held in trust for her daughter in a 10 year bond (originally $10,000).

14. In April 2001 the wife told the husband the marriage was over. The wife disputes this but acknowledges they were living separately under one roof. The parties physically separated in September 2001 when the wife left Town 1.

15. From 2001 to 2011 the husband lived in the C property. The wife claims the husband lived rent free, and did not share rentals/board received from other people living in the property. The wife also claims the husband has received all the rental income from the S property. The wife claims during the same time she paid a total rental of $120,000, though I note her May 2010 affidavit says the T property’s rental income from 2001 to 2003 paid the wife’s rental costs. The husband similarly claims that from separation until 2004 the wife rented out the T property and retained the $300 weekly rental (the husband’s March affidavit says $250), and lived in a property paid for by her work.

16. The wife claims that in October 2001 the parties paid off a loan for the 1996 holiday from the C property loan, leaving the C property unencumbered. The husband disagrees.

17. On 16 February 2004 the T property was sold for $309.666.30. The wife received $289,666.30 while the husband received an amount which has been agreed on the balance sheet at $20,000.

18. In 2004 the husband borrowed $50,000 to $55,000 from the wife. The parties’ evidence differs in relation to the actual amount. On 1 May 2009 the S property sold with net proceeds of $174,422.90. The husband paid monies back to the wife. The effect of these transactions is reflected on the balance sheet.

19. In 2010, Orders were made that the proceeds of the S property be divided $30,000 to the wife (which includes $10,000 interest for her loan), $20,000 to the husband and $23,129.45 to the husband for capital gains tax for which the husband was liable and which the husband has paid. Again, these amounts are reflected on the balance sheet.

20. The parties divorced on 21 March 2010.

21. In March 2011 each party received $15,646.72 in interim property orders (see items 1 and 2 on the balance sheet).

APPROACH

1. In this matter my task is to:

   39.1.Identify and value the property, assets, financial resources and liabilities of the parties;

   39.2.Identify relevant contributions and assess them;

   39.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;

   39.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. After initial discussion, the trial proceeded on the basis of a balance sheet which was substantially agreed.  Neither counsel during final submissions made any comment about the balance sheet. There were some minor items which had been contentious.  I have determined the value of four disputed items and discuss my reasoning below:

Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	W	S property proceeds	$15,646.00	$15,646.00	Agreed	$15,646.00
2	H	S property proceeds	$15,646.00	$15,646.00	Agreed	$15,646.00
3	W	C property	$410,000.00	$410,000.00	Agreed	$410,000.00
4	H	Suncorp account	$2,000.00	$2,000.00	Determined	$6,000.00
5	H	Motor vehicle	$100.00	$5,000.00	Determined	$0.00
6	H	Home contents	$2,000.00	$30,000.00	Determined	$2,000.00
7	W	ANZ account	$2,000.00	$2,000.00	Agreed	$2,000.00
8	H	Company 1 shares	$3,690.00	$3,690.00	Agreed	$3,690.00
9	H	Company 2 shares	$2,500.00	$2,500.00	Agreed	$2,500.00
10	H	Motorbike	$3,000.00	$6,500.00	Determined	$5,000.00
11	W	Proceeds T property	$289,666.00	$289,666.00	Agreed	$289,666.00
12	H	Proceeds T property	$20,000.00	$20,000.00	Agreed	$20,000.00
13	W	Part proceeds S property	$30,000.00	$30,000.00	Agreed	$30,000.00
14	H	Part proceeds S property	$20,000.00	$20,000.00	Agreed	$20,000.00
15	H	S property proceeds for CGT	$23,129.00	$23,129.00	Agreed	$23,129.00
16	H	V Superannuation Fund at separation	$141,000.00	$141,000.00	Agreed	$141,000.00
17	W	Y Superannuation Fund at separation	$159,838.00	$159,838.00	Agreed	$159,838.00
Total assets			$1,146,115.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
18	H	Home Equity Mortgage	$18,000.00	$18,000.00	Agreed	$18,000.00
19	H	CGT liability	$23,129.00	$23,129.00	Agreed	$23,129.00
Total liabilities			$41,129.00
Total net assets			$1,104,986.00

Comments on the balance sheet

1. I accept the husband’s evidence in relation to his motor vehicle, and I accept that it was an old motor vehicle that had provided long service to him and to his daughter and he eventually handed in the plates.  I do not count any value against the husband.

2. It was not disputed the husband had contents in the home at the C property.  He indicated that house and contents was insured for $30,000. No valuation was obtained in relation to house and contents. The husband has estimated its re-sale value was only in the order of a couple of thousand dollars and I accept that as the best estimate that I have. The husband gave evidence, which I accept, that he only currently has one motor bike and its estimated value at $5,000 which was the figure I placed on the balance sheet. 

3. All the remaining items were agreed. The wife accepted that she should have added back against her an amount of $289,666. These are monies she received from the sale of the parties’ first property. The most recent financial statement would indicate that there is little left of those funds. It was part of the husband’s case, and not seriously contested by the wife, that the wife had a gambling problem and unspecified amounts have been lost as a result of that. I also note however that the wife has not had the benefit of occupying any property which she owned during the last ten years and I infer that she has incurred expenses in providing accommodation for herself.  She is currently renting a property. When she swore her financial statement on 24 March 2010, she was paying $250 a week in rent.

The ante-nuptial agreement

1. When in South Africa the parties had entered into an ante-nuptial agreement. As was discussed during the hearing, whether or not the parties conducted their financial affairs in accordance with that agreement is of no great importance in the facts of this case. It was not suggested the agreement itself ousted the jurisdiction of the court to make an alteration of property between the parties that is overall just and equitable. 

The Wife’s Inheritance

1. The wife’s mother was killed in May 2009. The husband alleged the wife may have received an undisclosed inheritance. Counsel for the husband however did not ask the wife any questions about any undisclosed inheritance and I am unable to put any weight on the allegations made by the husband in that regard.

Wastage

1. The husband said he continued to deposit funds into the joint account after separation. He became aware that the wife was accessing the account and found that $20,000 had been withdrawn between April 1999 and January 2001 at ATMs from a Casino and a Leagues Club. The wife’s bank statements show a similar but more extensive pattern.

2. The wife says the money spent at the casino was money spent together, on meals, drinking and pokies. While there, it would not be uncommon to withdraw money for other day-to-day purchases. They would also wait and spend time at the Casino while waiting to pick the daughter up from her social engagements. She acknowledges frequenting the Brisbane Casino in re-establishing her social life upon leaving Town 1, however said this is funded from her post-separation income.

3. The wife said the husband wasted thousands of dollars during the relationship on his excess alcohol consumption.

4. There was no cross examination of the wife in relation to her gambling activities during the marriage nor did counsel for the wife pursue the husband in relation to any assertions that he had wasted money during the marriage. I make no finding and make no adjustment for any waste during the period of time the parties were together. I have already commented that the wife has had placed against her name on the balance sheet an amount of $289,666 which in no small measure is an acknowledgment by her of monies lost by her after the separation.

CONTRIBUTIONS

1. As I have indicated above, this dispute is about what adjustment of assets should be made between the parties based upon the contribution which each has made, both during the 28 years the parties were together and the almost ten years since they have been apart. As I will mention later, neither counsel of the parties made any submission that there should be an adjustment based on s 79(4)(d) to (g) matters.

Initial Contributions

1. The husband came to the relationship with a part share in a service station business, for which he received (local African currency)$5,000 when it sold in 1975. The husband says this money was used to purchase a boat and a Volkswagen motor vehicle which were in turn sold for US$5,000 which was used by the parties in Australia (the wife says $7,000). The wife said the husband received no such payment for the sale of the business. He also owned ‘a few’ motor cars and ‘a few’ motorcycles.

1. Nothing of substance turns upon that difference in the evidence.

2. The wife began cohabitation with two suitcases worth of possessions and later, in 1979, a property settlement from her former husband of £2,500. This money was deposited into the parties’ joint bank account (the wife says approximately $6,000).

3. The parties moved into a home owned by the husband’s parents upon cohabitation.

Financial Contributions

1. At cohabitation, the parties lived in a home owned by the husband’s parents. The husband paid the mortgage. He asserts the wife did not contribute to mortgage repayments. The parties were cohabiting at that time and I find the wife made indirect financial contributions. When the property was later rented out, the husband met any shortfall that arose from time to time. The wife said the property was a duplex and the rental from the other side of the property completely covered the mortgage and any rates and repairs. It was sold in 1978 for a net of approximately (local African currency)11,000 (as per the husband’s October 2010 affidavit) or $30,000 (as per the husband’s March 2010 affidavit). These funds were gradually remitted from Africa to avoid the strict foreign exchange laws. The husband said they were directed towards the T property.

2. The husband said he made the majority of the financial contributions in Africa and the wife worked in a clerical role to supplement their lifestyle. The husband was able to remit funds overseas during his employment and was able to avoid the strict foreign exchange laws in that African country. The wife said she earned an equal income to the husband in Africa and it was only with her supplemented income that the husband was able to remit a third of his income outside Africa. Nothing turns upon different evidence by the parties about their respective earnings at this time.

3. In Australia, the husband said he continued to earn the greater income, which was applied to the home mortgage, investment property mortgages where rental income fell short, insurance and day-to-day living expenses. The wife’s income was applied to supplementing the parties’ lifestyle. The wife says she worked three jobs part time until her degree, after which she has worked in positions earning the same or more than the husband. Again, little turns on this difference in the evidence.

4. The wife ceased employment three months prior to B’s birth and spent a significant amount of time at home until B reached school age due to her ‘multiple birth defects’. The wife undertook three casual jobs after B’s birth and before she went to school.

5. The T property mortgage repayments were paid by both parties, most significantly with a $15,000 gift from the wife’s mother.

C Property

1. The C property was registered in the wife’s name but the wife’s mother owned this property prior to her death. The property’s deposit of $22,000 was fully funded by the wife’s mother. The intention was for the wife’s mother to live in this property when she immigrated to Australia. All other mortgage repayments and costs were paid from the rental income and it was fully occupied for the time it was owned up until 2001. The wife’s mother agreed that the husband, as father of her granddaughter, could live in the house rent free if he maintained it and paid the rates. The wife’s sister has given evidence in her affidavit to say that she brought £5,000 with her to Australia from the wife’s mother for the purchase of land and subsequently sent over more money.

2. The wife said the property was only in the wife’s name because it would have been too difficult to arrange for it to be in her mother’s name while she was still residing overseas. The husband on the other hand said that the C property (as well as the T property) was put in the wife’s name because the parties wanted to engage in an asset protection exercise given that there was some prospect that the husband would enter into business in Australia. For the purposes of the exercise I am undertaking in assessing contributions, I do not need to make any determination as to which of those two versions is accurate.

Non-Financial Contributions

1. While in Africa, neither party worked around the home, with a servant being employed for such purposes.

2. The husband says both parties organised the building contractors for the T and C property houses. The husband also assisted in manual labour with respect to:

   63.1.installing air-conditioning and ceiling fans;

   63.2.making and installing the security gate;

   63.3.walled in an area for spa and lounge;

   63.4.assisted in constructing garage;

   63.5.constructing outdoor entertaining area;

   63.6.maintaining the garden; and

   63.7.undertaking minor repairs and general maintenance for the rented T property.

3. The husband concedes the wife assisted where she could but she had limited skills to do so. The husband said he also did the majority of the work to prepare the T property for sale in 2003. The wife said she assisted with garden maintenance and painting and that any alterations and improvements were carried out by a registered builder.

4. The wife was the main caregiver for the child. The father said he assisted when work permitted and cared for the child when the wife returned to work.

5. The wife said her mother’s assistance to pay off the T property mortgage meant both parties could go to university to further their careers.

Post Separation Contributions

1. At the date of the separation, the C property was effectively unencumbered.

2. Since separation the husband paid rates, insurances and did some maintenance of the C property in which he lived. From separation until 2009 he also met all outgoings for the S property. The wife assisted with her loan of $55,000 to reduce the mortgage repayments.

3. There is some evidence in Mr J’s valuation report of the C property that the husband, between 2001 and 2004, carried out improvements which increased the value of the property as at 2004 by a sum of $10,000.

4. The wife paid for the child’s health insurance until she finished university.

Conclusions in relation to contributions

1. Having read and heard the evidence of each of the parties, it is clear that each made a myriad of contributions over a very long period of time. There are some aspects of that history however which in my view warrant some small adjustment in relation to the assessment of contributions. They are as follows:

   71.1.I am satisfied on balance that the wife’s mother provided the majority of the funds to purchase the C property land.

   71.2.The husband has enjoyed the benefit for a ten year period of living in the major matrimonial asset without having to pay any accommodation costs whilst at the same time I infer that the wife has not had the advantage of accommodation which she has owned and accordingly has had to pay accommodation costs. Undoubtedly some of those costs were paid from the $289,666 which appears on the balance sheet against the wife (which sum she no longer has).

2. For those two principle reasons, I am satisfied that it would be appropriate to find that an adjustment should be made to the joint assets between the parties as to 55 percent to the wife and 45 percent to the husband.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. As I have previously indicated, neither counsel submitted that there should be any adjustment based on future needs. The husband has indicated that he believes he has recovered from a serious diagnosis of a secondary malignant melanoma. His oral evidence about his prognosis was encouraging and optimistic. The husband requires two hearing aids and suffers minor hypertension but is otherwise in good health. He is currently employed full time in the education industry. His Financial Statement of 26 March 2010 puts his weekly income at $1,394 which exceeds his weekly expenses of $779. He also receives small dividends from investments. The husband’s assets and liabilities are set out above on the balance sheet.

2. The wife says that based on the husband’s purchases in regards to motorcycle parts and tools, she does not consider he is maintaining a hobby, but is engaging in unreported paid vehicle maintenance work. Whilst the husband was cross examined shortly about these matters, no great emphasis was placed upon this as a potential undisclosed earning capacity of the husband and no submission was made that I should make a finding the husband had such an earning capacity.

3. The wife is employed full time in a professional capacity with a government department, with a recorded weekly income of $1,162. Her weekly expenditure of $1,157 is met by her income. The wife is in good health. Her assets and liabilities are set out on the balance sheet.

JUST AND EQUITABLE

1. Based on the findings I have made in respect of contributions and s 79(4)(d) to (g) matters, the assets and liabilities of the parties should be divided as to 55 percent to the wife and 45 percent to the husband.

2. That outcome could be achieved by dividing the assets and liabilities in accordance with the table set out below:

Husband gets 45%
Assets
Item No.	Description	Value
2	S property proceeds	$15,646
4	Suncorp account	$6,000
5	Motor vehicle	$0
6	Home contents	$2,000
8	Company 1 shares	$3,690
9	Company 2 shares	$2,500
10	Motorbike	$5,000
12	Proceeds T property	$20,000
14	Part proceeds S property	$20,000
15	S property proceeds for CGT	$23,129
16	V Superannuation Fund at separation	$141,000
17	Y Superannuation Fund at separation (wife’s)	$100,000
Liabilities
Item No.	Description	Value
18	Home Equity Mortgage	$18,000
19	CGT liability	$23,129
Husband receives			$200,000
Net Assets to Husband			$497,244
Wife gets 55%
Assets
Item No.	Description	Value
1	S property proceeds	$15,646
3	C property	$410,000
7	ANZ account	$2,000
11	Proceeds T property	$289,666
13	Part proceeds S property	$30,000
17	Y Superannuation Fund at separation	$59,838
Wife pays Husband		$200,000
Net Assets to Wife		$607,742

1. Standing back, I consider that distribution of assets and liabilities to achieve a just and equitable outcome between the parties.

PROPOSED ORDERS

1. I am satisfied under the contents of Exhibit 2, that Y Superannuation Fund has been afforded procedural fairness in relation to the proposed split of the wife’s superannuation.

2. The proposed distribution of assets assumes that the husband will take on the responsibility for the current debt in relation to the home equity mortgage and I will make an order that that debt be discharged at the same time as the wife is settling payment of the ordered sum and affecting a split of her superannuation. 

3. The husband should give the wife vacant possession of the C property contemporaneously with the wife fulfilling her obligations in respect of the orders which I have made. 

4. In the event the wife does not raise the funds within the requisite time, there will be a default sale of the C property and in those circumstances, if the parties are unable to agree on any matter relating to the sale, then I will give the parties leave to seek further orders in relation to the implementation of the order for sale. The husband should receive 48.8 percent of the net proceeds of sale (approximately $200,000 of its $410,000 value).

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2012.

Associate: 

Date:  12.1.2012