Trebiano and Trebiano

[2019] FamCA 530

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO [2019] FamCA 530

FAMILY LAW – PROPERTY – Where both parties are retired – Where the wife made substantially greater financial contributions – Where the wife’s physical contributions exceeded those of the husband – Where the wife’s contributions are assessed as 70 per cent and the husband’s as 30 per cent – Where the wife seeks a Kennon adjustment – Where no adjustment for Kennon is made – Where both parties seek to remain in the former matrimonial home – Where the husband has a degenerative disorder and should be given the opportunity to remain in the household – Where the former matrimonial home can undergo minor modifications to assist his condition – Where modifications are not a 75(2) factor – Where the 75(2) adjustments are 7.5 per cent to the husband if he remains in the former matrimonial home, and 10 per cent if he leaves the former matrimonial home. Where the husband is required within two months of these reasons to nominate whether he will remain in the former matrimonial home – Where if he remains, he receives 37.5 per cent of the assets, and if he leaves, he will receive 40 per cent of the assets – Where if the husband chooses not to stay in the former matrimonial home, the wife will receive the home.

Family Law Act 1975 (Cth)

Kennon & Kennon (1997) FLC 92-75

APPLICANT: Ms Trebiano

RESPONDENT: Mr Trebiano

FILE NUMBER: PAC 1251 of 2017

DATE DELIVERED: 9 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 29, 30 & 31 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Maclarens Lawyers

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Brander Smith McKnight Lawyers

ORDERS

IT IS ORDERED PENDING FURTHER ORDER

1. That within two months of the date of these reasons, the husband notify the wife of his decision whether to retain the property at B Street, Suburb C.

2. That within 28 days of the date hereof, the parties submit a Minute of Orders to give effect to the determination in these reasons.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trebiano & Trebiano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1251 of 2017

Ms Trebiano

Applicant

And

Mr Trebiano

Respondent

REASONS FOR JUDGMENT

1. Ms Trebiano (“the wife”) and Mr Trebiano (“the husband”) lived together for a few months and then married in 1992. They had no children.

2. At the time of the hearing the wife was 72 years old and the husband was 71 years old.

3. The wife alleges that, from the beginning of their relationship, the husband perpetrated family violence upon her.

4. At the commencement of their co-habitation the wife had property at 1 J Street, Suburb K which was unencumbered; at 2 J Street, Suburb K, encumbered and at M Street, L Town (“L Town”) unencumbered. The wife had used 2 J Street as security to borrow about $200,000 to build at L Town. She owned a business “P” and a half share, with her sister, in a second business, “Q”. She had a motor vehicle and savings.

5. The husband owned a property at R Street, Suburb S (“Suburb S”) subject to a mortgage. He also had a half share, with his business partner, in a property at T Street, Suburb U (“T Street”) and a half share in a business V Pty Ltd (“V Pty Ltd”). He had an interest in equipment and machinery. V Pty Ltd occupied the T Street property. He also had an interest in superannuation in a fund with the Commonwealth Bank. Although he estimates the balance to have been $8,000, I note that in 1998 or 1999, when the amount was rolled over into the parties’ self-managed superannuation fund, it was worth $8,000 so the value was probably less in 1992.

6. The wife worked in the management and day to day running of her businesses and the husband worked at V Pty Ltd. The husband asserts, and the wife denies, that he did significant work in her businesses.

7. After the marriage, the wife leased the P premises and received $500 per week. She continued to receive income from the two J Street properties of $3,467 per month and received income from the Q business of between $800 and $1,500 per month. From that income, she paid the mortgage on 2 J Street. There is no evidence of the amount of the mortgage repayments.

8. The husband earned about $600 per week from V Pty Ltd. He asserts that, from time to time, he drew further money from V Pty Ltd. The wife disputes that assertion and he adduced no evidence to prove it.

9. The wife’s income was significantly greater than that of the husband.

10. In February 1992, the parties purchased a property at B Street, Suburb C (“Suburb C”) for $238,000. The wife asserts that the husband initially provided the deposit of $30,000 but he was paid back from the mortgage raised for the purchase. The husband asserts that he borrowed the deposit on the security of Suburb S and that it was not paid back.  That issue cannot be resolved. There was a mortgage to fund the purchase. The evidence does not establish the amount borrowed. The mortgage payments were $960 per fortnight. The dispute does not need to be resolved. It is agreed that the parties contributed everything they had to the purchase and renovations of Suburb C and to the joint superannuation fund.

11. In February 1992 the husband received an inheritance of $14,000 from his mother’s estate.

12. Also in 1992, the wife purchased her sister’s interest in the Q business for $40,000.

13. In 1996, the parties began to plan their retirement.

14. In 1996, the wife closed the P business.

15. In 1997, the wife sold 2 J Street for $192,000 and applied those funds to discharge the mortgage over the property.

16. In 1998, the wife sold 1 J Street for $175,000 and received net $171,082 and a further $10,000 for the furniture. Those funds were used to discharge the mortgage over Suburb C.

17. In 1998 the wife sold L Town for $510,000 receiving net $457,954.  She used those funds to purchase a commercial property at N Street, Suburb O (“Suburb O”), in joint names, for $400,000.

18. The Suburb O property was rented and the rent ultimately paid into their joint superannuation fund. When the Suburb O property was acquired, the rent was $31,200 per annum. In 2002 the rent was $44,200 per annum. In 2006 the rent increased to $48,730 and in 2017 to $54,815 with yearly increases of 4 per cent.

19. Also in 1998 (according to the wife) or 1999, (according to the husband), the wife’s father gave her $100,000. She ultimately paid that money into the Superannuation Fund.

20. In November 1998, the husband sold his Suburb S property receiving net $100,000 which was paid ultimately into the Superannuation Fund.

21. In 1998 or 1999 the husband rolled over his superannuation entitlement with the Commonwealth Bank of $8,000 into the Superannuation Fund. He also received an insurance payout of $10,300.

22. Also in 1999, the wife sold the Q for $165,000 and those monies, together with the sum of $100,000 given to her by her father, ultimately were paid into their self-managed superannuation fund.

23. As a result of her trading in the business, the wife had a credit on a Bartercard of $50,000. Those credits were ultimately used to pay for some of the renovations to Suburb C.

24. In 1999 the parties established a self-managed superannuation fund, The Trebiano Superannuation Fund (“the Superannuation Fund”). They were the members. The trustee was D Pty Ltd. I infer that they were equal shareholders and directors. The wife managed the Superannuation Fund and oversaw the rented properties.

25. The Superannuation Fund purchased T Street. The husband received $94,462 for his half share and paid that money into the Superannuation Fund.

26. In 1999, the parties commenced substantial renovations to Suburb C which were completed in 2005. The renovations were funded from their available funds,  the Superannuation Fund and the wife’s Bartercard credit.

27. In June 1999, the husband sold V Pty Ltd for $60,000. He received a further sum of $35,000 from outstanding creditors. The proceeds of the sale of V Pty Ltd and from creditors were paid into the Superannuation Fund.

28. Also in June 1999, the Superannuation Fund purchased W Street, Suburb K for $190,000.

29. In October 2003 the husband received $7,645 from the gun buy back.

30. In 2004, the wife received $17,227 by way of compensation after a whiplash injury.

31. In 2005 the wife’s mother died and in 2006 she received $533,589 from her mother’s estate. $200,000 from her inheritance was paid into the Superannuation Fund and $300,000 was used to purchase listed shares. The remaining $33,000 was contributed to the renovations. The shares were sold at a later date and $300,000 was paid into the Superannuation Fund.

32. During 2007, the parties became aware that the husband was having difficulties walking long distances and suffering muscle spasms.

33. In 2008 the husband was diagnosed with a neurodegenerative disorder. The effect of the disease will be described later in these reasons.

34. In 2010, the wife became aware of the husband’s relationship with Ms Y. Although a great deal of the affidavit material of both parties was devoted to accusations and denials as to the nature of that relationship, and time was spent in cross-examination on the issue, the nature of that relationship was relevant only in that it might shed some light on the change in their relationship after that time. It is agreed that, having learned of the relationship, the wife insisted that the husband moved into another bedroom. When the parties finally separated is an issue in the proceedings.

35. In December 2010, the husband attempted suicide.

36. In March 2011 the husband defaced the wife’s car with a screwdriver, writing “bitch” on the car. The police were called.

37. In 2013 the husband was diagnosed with cancer and he underwent surgery in April 2013.

38. In May 2014 the husband had cardiac surgery.

39. In December 2016 the wife moved into the self-contained flat at Suburb C and told the husband she wanted to divorce. The wife transferred $100,648 from the parties’ joint account into an account in her own name. The husband conceded that she had done so only to get a better rate of interest and not with any intent to deprive him of the funds. She paid half of the fund to the husband in September 2017.

40. In March 2017, the wife commenced steps to separate the parties’ financial arrangements. The Suburb O property was transferred into the Superannuation Fund.

41. On 22 March 2017, the wife filed an application for property settlement.

42. On 15 May 2017, the wife left the home and the husband remained in occupation. The wife lived with friends and paid board.  

43. On 30 June 2017, the parties each drew down $65,588 from the Superannuation Fund.

44. Proceedings for property settlement were heard and determined by final orders made on 18 May 2018. The husband appealed from those orders.

45. In June 2018, the husband sold his Vehicle 1 that had been purchased from joint funds. He received $58,000 which he used to buy another vehicle for $34,000 and to pay $24,000 towards his legal fees. There is a dispute over how those funds should be treated.

46. In September 2018 an order was made, as a condition of a stay pending appeal, requiring the husband to pay the wife $500 per week pending determination of an appeal against final orders.

47. In November 2018, the husband rented out the self-contained apartment which is part of Suburb C for $400 per week.

48. In February 2019, the appeal was determined and the matter was remitted for re-hearing. Thereafter, the husband retained the rent from Suburb C.

49. The Suburb C flat continues to be rented out and the husband has continued to receive the rent, now $440 per week.

50. From 1 July 2019 to 4 July 2019, the husband drew $180,000 from the Superannuation Fund. He paid $17,000 to Ms Y and $165,000 to his solicitors. The husband also sold his car and, from the proceeds, paid a further $24,000 to his solicitors.

51. At the time of the trial, each party was receiving a pension of $982 per week from the Superannuation Fund and the husband additionally received the rent of $440.

52. The parties agreed that, because of possible complexities in liquidating the assets of the Superannuation Fund, I should deliver reasons for judgement and allow them to draft the orders to give effect to the decision.

ISSUES

1. From the narrative set out above, the following issues of fact arise.

   ·    What contributions did the husband make to the operations of the Q business?

   ·    The wife’s allegations of family violence. Should there be an adjustment for a Kennon claim?

   ·    When did the parties finally separate?

   ·    How should the sale proceeds of the Vehicle 1 be treated?

2. At the outset, it became apparent that there was a dispute about the value of Suburb C.

3. There is also a dispute about which of them retains the Suburb C property in which they both wish to live.

4. A further issue arose in submissions about the future treatment of the rent being received by the husband for the self-contained flat at Suburb C.

What contributions did the husband make to the operations of the Q business?

1. The wife concedes that the husband made some contributions to the operations of the Q business.

2. The business employed, on average, nine staff.  The wife attended to the day to day management.

3. The wife concedes that the husband repaired a piece of equipment; that he once moved equipment; that on three occasions he transported equipment between the P and the Q businesses; that he repaired chairs; that on one occasion he helped her set up before opening and that he once took photographs.  

4. The husband claims a far greater contribution.

5. Ms X, who worked at the Q business in 1991 and 1992; in 1994 and from 1995 until 1996, deposed that she worked four or five shifts each week and that she observed that the husband ate his evening meal at the business. She did not see the husband do any work in the business such as cleaning or customer service.

6. On the evidence available, I accept that the husband did some repairs and maintenance as the wife conceded but am unable to find that his contribution was as extensive as he claimed.

The wife’s allegations of family violence. Should there be an adjustment for a Kennon claim?

1. As is almost always the case where allegations of family violence are made, there is little evidence that corroborates the version of either party. The Court must make an assessment of the allegations and denials having regard to the fact that the onus of proof falls upon the wife who makes the allegations.

2. The wife alleges that the husband was violent towards her from the very beginning of their relationship. She deposed that, on not less than one occasion every four weeks, the husband spoke to her in a loud voice and raised his fist and placed it within two or three centimetres of her face.

3. She deposed that he “grabbed me by the throat with both his hands and pressed his hands hard against my throat” on not less than five occasions between November 2010 and June 2011. “Each time, I could not breathe and I thought I was going to die. I felt faint when [he] released his grip”. Tested on that statement in cross-examination, she said that she had to catch her breath.

4. She deposed that on not less than four occasions each year, the husband broke items of crockery or glassware, throwing them against the wall or on the floor. He also broke items such as bowls or photo frames.

5. She deposed that he called her a “bitch”; a “cunt” and a “fucking bitch” and that he told her he should never have married her.

6. She deposed that, on two occasions, he smashed the telephone handset.

7. In 1998 he slammed the back door, breaking a glass panel.

8. She deposed that, in 2010, after she telephoned Ms Y’s husband and told him that the husband and Ms Y were having an affair, he grabbed her by the throat and squeezed and threatened to beat her “black and blue”.

9. During the renovation of Suburb C, he threw a hammer in the workshop, denting the range hood that was waiting to be installed.

10. On 26 March 2011, the husband used a screw driver to scratch the words “don’t bitch” on the wife’s car and caused the laundry door to fall off.

11. The husband conceded some of the wife’s allegations in his affidavit. He agreed that he had called her a “bitch” but denied “fucking bitch”. He agreed that he wrote “bitch” on the wife’s car but said he had apologised. He agreed he had caused the laundry door to fall off but said that the hinge gave way when he slammed the door. Having regard to the notes of Dr Z to which reference is made later in these reasons, I do not accept his evidence in relation to the door. He agreed he had smashed dishes but said the wife had not been present. He agreed that he had said to the wife that he should never have married her but said that was towards the end of the relationship.

12. Ms X and Ms E swore affidavits in the wife’s case. Their evidence was not challenged.  Both are long term friends of the wife.

13. Ms X deposed that she heard the husband say to the wife, on many occasions, in a loud voice “You don’t know what you’re doing woman” and “You don’t know what you’re talking about”. Ms X deposed that she remembered saying to the wife “How do you put up with the way he talks to you?”

14. Ms E deposed that, on an occasion when she and the wife were away together on a holiday, the husband telephoned the wife and told her “You’ve got to fucking come home”. She deposed that when they arrived at the Suburb C property, the husband was angry and he said to Ms E “She’s such a bitch I’d rather have a wank than go anywhere near her.”  Ms E deposed that, after that occasion, she resolved not to socialise with the husband.

15. Dr Z, was consulted by the husband after a suicide attempt in December 2010. He was accompanied, on at least one occasion, by Ms Y to whom Dr Z referred in her notes as the husband’s “girlfriend”. Dr Z noted the husband’s  behaviour as:

    mood swings - triggered – explosive

    break objects enraged

    wrote “bitch” on car, tore laundry door

16. Although the husband denied that he had said those things to Dr Z, he had no other explanation for her recording them in her notes. I accept that Dr Z recorded what the husband told her.

17. On 11 March 2011, the wife wrote an email to the husband telling the husband that, as of that date, they were officially separated. In the email she stated:

    If I’m yelling and screaming and throwing things it’s because of the build up of years of verbal abuse from you and the frustration of not being able to answer back.

18. She did not, in that email, make reference to any alleged physical violence although it was her evidence that the husband had regularly grabbed her by the throat since November 2010.

19. The police were called by the wife on 26 March 2011 and they made an application for an Apprehended Domestic Violence Order (“ADVO”). In the facts presented by the police in support of the application they state:

    The Defendant and the Victim are going through some marital problems with both parties considering divorce. As a result there is an amount of tension between them.

20. Under the heading “FEARS HELD BY VICTIM” the police stated:

    That the Defendant may become violent towards her as he has been displaying erratic behaviour recently.

21. In cross-examination, the wife agreed that the police had accurately recorded what she told them and that, although she now deposes that the husband had grabbed her around her throat on a number of occasions since November 2010, she did not tell the police about that.

22. Although the wife deposed that she wished to proceed with the ADVO and that, at Court on the morning of the hearing, the husband persuaded her not to, that evidence is not consistent with the statement prepared by the police which states, in relation to their attendance at the home on 26 March 2011:

    Police attended and spoke with the Victim. The Victim explained that she did not wish to take any action against the Defendant in relation to the damage as the vehicle is jointly owned and insured by both parties, therefore the Defendant suffers as much financial loss as she does.

1. I am unable to find on the balance of probabilities that the husband was physically violent towards the wife.

2. However, I accept that he used foul and abusive language towards her as she has deposed and that he broke household items in temper.

3. I note also that the wife admits that she slapped Ms Y and that she smashed the husband’s mobile phone.

4. Having regard to all of the evidence, it would appear that this was, at least after the intervention of Ms Y in the marriage, a volatile and verbally abusive relationship. Both concede verbal abuse towards the other. Both have broken telephones.

5. The principles to be applied in such a claim are stated by the Full Court in  Kennon & Kennon (1997) FLC 92-75 in the following terms:

   However, it is important to consider the “floodgates” argument.  That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past.  In addition, there is the risk of substantial additional time and cost.

   However, in our view, s.79 should encompass the exceptional cases which we described above.  It would not be appropriate to exclude them as a matter of policy because of this risk.  It is a matter of common sense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.

   It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.  To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.  It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).  Similarly, in Killick v Killick (1997) 21 Fam.L.R. 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.

6. I do not consider that the facts of this case, where the wife has established that the husband used foul language but she has not established physical violence towards her, fall within that category of “exceptional” cases posited by the Full Court.

When did the parties finally separate?

1. Although the wife contends that the parties separated on 11 March 2011, it became apparent that, whatever she might believe, this was not so.

2. There is no dispute that there was a serious disruption in the relationship in March 2011, and that from that time the parties occupied separate bedrooms, but their relationship continued.

3. They continued to operate a joint bank account. They continued to operate the joint Superannuation Fund. Their allocated pensions were paid by the Superannuation Fund into a joint account which they both continued to operate. There was no appreciable difference in the way they operated their finances before and after March 2011.

4. The wife continued to be responsible for the day to day management of the household and the house work. She cooked their meals.

5. They drove together to visit relatives on occasions. They attended a wedding together. They spent at least two Christmases together with friends or relatives. They occasionally celebrated birthdays together.

6. The wife accompanied the husband to most, but, he says, not all, of his medical appointments. She drove him to and from hospital when he had surgery and visited him in hospital every day. When he was operated on for prostate cancer, she brought him food every day because the hospital food was unpalatable.

7. In answer to questions from counsel for the wife, the husband said that the wife was very supportive in relation to his illnesses and treatment.

8. The wife represented to Centrelink that she was the husband’s carer and received a carer’s pension. The pension was paid into their joint account and then divided between their respective superannuation entitlements.

9. In December 2016, the wife moved from the main part of the house into the self-contained apartment above the garage.

10. On 15 May 2017, she left the property and thereafter lived away.

11. For the purpose of these proceedings, the relationship ended on 15 May 2017.

How should the sale proceeds of the Vehicle 1 be treated?

1. The Vehicle 1 was sold for $58,000 after separation and after the first proceedings for property settlement had been determined. The husband used that money to buy another vehicle for $34,000 and to pay $24,000 towards his legal fees.

2. The husband’s position is that the vehicle, which has not been valued but he estimates to be worth $25,000 should be included on the balance sheet at that value and the $24,000 should be added back as an asset in hands.

3. The wife contends that the whole $58,000 should be added back.

4. The Vehicle 1 was purchased for $115,000 from joint funds. The wife was not consulted about the sale. It appears to have been sold at a considerable loss quite soon after its purchase.

5. It would be unjust to the wife if the whole sale proceeds were not added back. However, it is also then necessary to remove the husband’s car and the legal fees paid from the sale proceeds from the balance sheet.

What is the value of Suburb C?

1. Mr BB, the Single Expert-Valuer, was cross-examined.

2. Counsel for the wife challenged Mr BB’s valuation of the Suburb C property on the basis that he had not included, in his calculations, a calculation of the effect of the rental income of the self-contained unit. Implicitly, counsel suggested that the value of the property should be assessed as higher than a comparable property which did not have an attached rental income.

3. Mr BB did not agree with that proposition.

4. He said that the value of the property was the same, whether the rent on the flat was taken into account or not.

5. If the flat were to be considered separately, the house is valued as a three bedroomed house and has a lesser value. Not all buyers would want to rent out the flat, preferring to use it themselves, and some buyers would consider the loss of privacy caused by having a tenant to be a draw back.

6. Mr BB said that he had looked for a comparable property with a self-contained flat that was rented but had been unable to find one. His comparable sales included one property with self-contained accommodation that included a large bedroom with en suite bathroom, living/dining room and kitchen and separate access.

7. Mr BB, who is both a valuer and a licensed builder, said that his “Check Method” valuation using the summation approach supported his opinion as to value.

8. I accept the evidence of Mr BB that the fact of the flat being rented is not a factor affecting the value of the Suburb C property. 

Is the receipt of rent from Suburb C a factor to be taken into account pursuant to s75(2)?

1. Counsel for the husband submitted that, to take into account the rent from the flat, would be to double count since the value of the rental has already been taken into account in assessing the value of the property.

2. I reject that proposition.

3. Mr BB said that the value of the Suburb C property was the same, whether or not the flat was rented.

4. He specifically rejected the proposition put by counsel for the wife that the value should be increased to factor in the rent received.

5. The ability to rent out the flat and earn an income from the rent is valuable to the owner. Both parties, if in occupation, intend to rent the flat out. The current rental is $440 per week or $22,880 per annum.

6. The ability to generate a rental income is a factor to be taken into account pursuant to s75(2).  

THE COMPETING APPLICATIONS

1. Neither party seeks a two pool approach.

2. The wife seeks a transfer to her of the Suburb C property and the husband’s interest in the Superannuation Fund. She proposes then to pay a sum of money to the husband so as to achieve an overall split as to 70 per cent to her and 30  per  cent to the husband.

3. The husband also seeks an order for the transfer of the Suburb C property to him. He also proposes that the whole of the Superannuation Fund be transferred to the wife and that she then pay him an amount which achieves an overall equal division of the asset pool.

4. The parties are continuing to seek advice from their accountant about the most cost effective way to split the Superannuation Fund and it is agreed that the reasons for judgment will be published and the parties will be given an opportunity to draft orders and machinery provisions to best give effect to the reasons.

5. The issue of which party should retain the Suburb C property can be determined once it is clear what each will receive by way of property settlement. The husband asks that, whatever the outcome, he be given the opportunity to try to retain the property.

SECTION 79(2)

1. Both parties agree that it is necessary for their assets to be divided.

2. They are no longer able to enjoy jointly that which they have accumulated.

THE BALANCE SHEET

1. The parties tendered a joint balance sheet which is reproduced below. Ultimately, the only issue in dispute on the balance sheet was the treatment of the sale proceeds of the Vehicle 1. The parties have no liabilities except for unpaid legal fees. Neither seeks to include those liabilities on the balance sheet.

2. I find the assets of the parties to be:

B Street, Suburb C	Joint	1,350,000
Sale of Vehicle 1	Husband	*58,000
Car - Vehicle 2	Wife	7,000
Bank (W) - CBA Term Deposit #...	Wife	50,000
Bank (W) - CBA #...	Wife	1,327
Bank (W) - CBA #...	Wife	14,000
Bank (H) - CBA #..	Husband	*17,236
Equipment, tools and gun collection	Husband	*17,600
Term deposit funds received from wife	Husband	*50,000
Monies received from superannuation (H)	Husband	*165,000
Monies received from superannuation (W)	Wife	80,000
Super (W) - Super Fund	Wife	1,532,001
Super (H) - Super Fund	Husband	1,481,650
Total	4,823,814

1. The assets marked * are assets which have been used by the husband or will be retained by him.

2. Of the asset pool, the husband has used or will retain assets to the value of $307,836.

CONTRIBUTIONS

1. I propose to adopt the course taken by both counsel in submissions of comparing the value of the respective initial financial contributions at the values at which they were realised at the time when the parties commenced to set up their Superannuation Fund. This course is appropriate in circumstances where neither party alleged a contribution made towards the property which the other brought into the marriage. I will add those amounts which were gifts, inheritances or insurance payments.

2. The wife’s lump sum contributions were:

   ·    Sale of L Town  $457,954

   ·    Sale of 1 J Street and contents  $181,082

   ·    Gift from her father  $100,000

   ·    Sale of Q  $165,000

   ·    Bartercard credits  $50,000

   ·    Inheritance from her mother  $533,589

   ·    Compensation payment  $17,227

   ·    Total  $1,504,852

3. The husband’s lump sum contributions were:

   ·    Inheritance  $14,000

   ·    Sale of Suburb S  $100,000

   ·    Superannuation rolled into fund  $8,000

   ·    Insurance claim  $10,300

   ·    Sale of V Pty Ltd  $60,000

   ·    Creditors of V Pty Ltd  $35,000

   ·    Sale of T Street  $94,462

   ·    Gun buy back  $7,645           

   ·    Total  329,407

4. The total of their lump sum contributions was $1,834,259. Of these, the wife contributed 82 per cent.

5. The parties’ also made contributions by way of personal exertion.

6. They both worked in their respective businesses until 1999 when both were sold. They both contributed their income from work. The wife’s contributions of income were greater than those of the husband.

7. They both contributed to the renovations of the Suburb C property. The husband did a great deal of the physical work. The wife managed the renovation, kept the accounts and cleaned up after the work each day. The wife developed the gardens. Over the whole of the renovation process which lasted for six years, I assess their contributions to the renovation as equal.

8. The husband does not assert that he made any home making contributions. It was the wife who performed the house keeping tasks such as cooking, cleaning and washing. The wife also maintained the garden.

9. After 2008 when the husband was diagnosed with a neurodegenerative disorder, he was less and less able and required the support of the wife which he said she gave him. She went with him to medical appointments, took him to and from hospital and visited him in hospital.

10. The wife’s physical contributions exceeded those of the husband.

11. Overall, I assess the wife’s contributions to be 70 per cent and the husband’s contributions to be 30 per cent.

SECTION 75(2)

1. The wife is 72 years old and the husband is 71 years old. They have both retired. There is no realistic likelihood that either will earn money from employment.

2. The husband’s lifestyle is frugal. He estimates his personal expenditure to be $457 per week. The wife, perhaps because her health is better, estimates her personal expenditure to be $957 per week. Neither was challenged.

3. The issues upon which attention was focused were the husband’s life expectancy and the costs of modifying the Suburb C property for his continued occupation.

4. It is necessary to understand something of the husband’s complex health issues which were a large focus of the hearing. Evidence was called in the husband’s case from Professor G, his treating neurologist; Professor H, his cardiologist and his general practitioner Dr CC. In addition three single experts were appointed. Professor DD, a consultant in neurodegenerative diseases, Dr FF, a gerontologist, and Ms GG, a consultant occupational therapist.

5. The state of health of the husband is significantly compromised due to his diagnosis of a neurodegenerative disorder. The disease is degenerative and there is no treatment.  Professor DD summarised the husband’s present state, as reported to him by the husband, and confirmed on examination, in the following terms:

   [He] reports difficulty with walking. He uses a motorised scooter. He is able to walk 50 m independently with a stick. He furniture walks around the house. He has no difficulty in swallowing at present...At times he does find it difficult to clear phlegm. He reported bilateral upper limb tremor and weakness affecting both arms.

   [He] is able to drive a motor vehicle. He lives in a one storey house with a few steps to the front entrance. There are a couple of steps in the house itself but he is able to navigate these without significant difficulty. At times he needs help with dressing, particularly when he has to do up buttons. He is able to shop on his own. He is able to carry light shopping bags. He has a workshop at home and he is still able to undertake some hobbies in the workshop...

6. Professor DD, stated in his report:

   [The condition] is not regarded as a fatal condition and the literature suggests that it does not affect life expectancy. In other words, life expectancy of a patient with [the condition] is more likely to be determined by other illnesses that the patient may have. 

7. Dr DD also stated:

   It is likely that there will be further progressive deterioration of muscle function. This may require him to have further assistance at home particularly with aspects of self-care. This is not required at present as he remains relatively independent. Similarly, he may require further modifications to his home.

8. Dr FF and Professor G concurred with Professor DD’s assessment in relation to life expectancy.

9. The Single Expert Occupational Therapist, Ms GG recommended minor moderations to the property such as installing stair and shower rails and perhaps a platform lift. In relation to the costs of installing railing, there is no evidence of the likely cost. The cost of a platform lift would be $17,950.

10. However, although the husband wants to stay in the Suburb C property, he is not required to do so. He could purchase other accommodation. He needs a dwelling on one level with access to a garage where he could install his workshop. The dwelling could be a house, either detached or semi-detached, or an apartment with level access to a lift. No modifications would be necessary to such a dwelling to accommodate the husband’s present condition.

11. The Suburb C property has six steps leading from the workshop into the house and three sets of two steps into the corridor leading from the front door and giving access to the ground floor. Ms GG said that railing on each set of steps would assist the husband. The platform lift would allow easier access from the workshop to the house. 

12. If the husband chooses to remain in the Suburb C property, rather than to purchase a level dwelling, he cannot expect the consequences of that choice to be shared by the wife and there could be no adjustment to take into account the costs of the modifications.

13. Ms GG also gave evidence about the likely cost of assistance within the home, should the husband, at some later time, require such assistance.

14. At the present time he is able to live independently with the assistance of Ms Y who visits, on average, twice a week. Ms GG reported that Ms Y provides the husband with assistance for four to five hours each fortnight.

15. It is not possible to predict what the progression of the husband’s disease will be. The condition is very rare. It is degenerative but the progress of the degeneration can be very slow. When and if the husband might require assistance, beyond that provided by Ms Y, cannot be known or guessed.

16. Although Ms Y had given evidence in the first hearing, she did not give evidence before me. Therefore her evidence about whether she will continue to assist the husband was not available. No reason was given for her not being called. I infer from the fact that the husband has made a will leaving the whole of his estate to Ms Y (or, if she predeceases him, to her children) that he must have some confidence in their relationship continuing.

17. I accept that the husband’s condition will require some expenditure on his part but I am unable to estimate a figure.

18. Having regard to all of the factors outlined above, I propose to make an adjustment in favour of the husband of 7.5 per cent if he remains in the Suburb C property. This adjustment would take into account that, although the wife will receive a greater share of the divisible assets, she will have to buy a home to live in. Although she will still have a larger amount to invest and from which to earn an income to support herself, the husband will have the benefit of being able to rent out the flat and use that income to supplement his earnings from investment.

19. However, the husband may not be able to afford to remain in the Suburb C property. If he chooses not to remain, the wife will have the advantage of the rental income and there should be a consequent further adjustment in favour of the husband of 2.5 per cent which is approximately equivalent to five years’ rent.

WHO SHOULD RETAIN SUBURB C

1. I accept that each party has a significant sentimental attachment to the Suburb C property.

2. The wife regards the creation of the award winning garden as a labour of love. She deposed:

   I have for many years...carefully planned, considered and physically worked hard in maintaining and improving the home

3. The husband’s attachment to his workshop is foremost in his mind and in oral evidence he said that, if he cannot remain in Suburb C, he will sell the equipment.

1. However, I do not accept that to be necessary. The workshop is no more than a part of the double garage and could be relocated to another double garage by appropriate tradesmen.

2. Ms GG assessed the husband in the Suburb C property having regard to his disability. It was her assessment that, at present, the addition of stair and shower railings would sufficiently modify the property for the husband’s use. 

3. Professor G, the husband’s treating neurologist, emphasised the preference to keep patients with illnesses such as those suffered by the husband, in their own homes for as long as is possible.

4. Ultimately, I accept that the process of moving to and setting up a new home would be much more arduous for the husband, because of his disabilities, than it would be for the wife and, primarily for that reason, the husband will be allowed the opportunity to retain the Suburb C property.

CONCLUSION

1. The husband will be required to nominate, within two months of the publication of these reasons, whether he will remain in the Suburb C property. If he chooses to remain, he will receive the equivalent of 37.5 per cent of the assets of the parties or $1,808,930 noting that he will retain Suburb C and the assets of $307,836 in his possession. If the value of the Superannuation Fund remains unchanged, he would receive $151,094 from the fund.

2. If the husband leaves Suburb C, then the wife will be entitled to it and the husband will receive 40 per cent of the assets or $1,929,526. That would require a payment by the wife to the husband, from the Superannuation Fund, of $1,621,690.

FURNITURE

1. Each of the parties wants furniture and household effects from Suburb C, regardless of which of them remains in occupation.

2. The wife does not seek any of the contents of the workshop which have been included as an asset of the husband in the balance sheet.

3. There is no evidence of the value of the household contents.

4. The parties have been given the opportunity to agree on a division in whatever way they choose. If they cannot agree, the Orders will provide that the contents be sold and the proceeds divided in the same proportion as the remaining assets.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 August 2019.

Associate:

Date: 9/8/2019