Waters and Durrant and Anor

[2017] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATERS & DURRANT & ANOR [2017] FCCA 344

Catchwords:
FAMILY LAW – De facto property – cohabitation period of twenty-two years – no dependent children – small property pool – wife retain the former matrimonial home – parties retain own chattels – parties retain own superannuation entitlements  – caveat to be removed.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 106A

Transfer of Law Act 1958 (Vic) s.90(3)

Applicant: MR WATERS

First Respondent: MS DURRANT

Second Respondent: (OMITTED) PTY LTD

File Number: AYC310 of 2014

Judgment of: Judge Hartnett

Hearing date:	8 November 2016
Delivered at:	Melbourne

Delivered on: 28 February 2017

REPRESENTATION

The Applicant:	In Person
The First Respondent:	In Person

THE COURT DECLARES THAT:

1. Pursuant to s.90(3) of the Transfer of Land Act 1958 (Vic) the caveat lodged by (omitted) Pty Ltd (account number (omitted), dealing number (omitted)) (‘the caveat’) is invalid.

THE COURT ORDERS THAT:

1. The Second Respondent do all acts and things and sign all documents necessary to remove the caveat within 28 days of these orders.

2. The Registrar of Titles (Victoria) is requested to remove the caveat within twenty-eight days of these orders.

3. Within 60 days of these orders, the Applicant and the First Respondent do all acts and things and sign all documents necessary to transfer to the First Respondent at the expense of the First Respondent, all of the Applicant’s right, title and interest in the real property situate at Property L being the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (‘the real property’) such that the First Respondent is registered as the sole proprietor of the real property.

4. The First Respondent indemnify the Applicant with respect to the mortgage encumbrance and all outgoings with respect to the real property past present and future and refinance the real property within 12 months from this day such that the Applicant shall thereafter have no liability in respect of same.

(5)         Each party retain their own superannuation entitlements to the exclusion of the other.

(6)         Each party retain those chattels in each of their respective possession (the chattels in the real property are to remain in the possession of the First Respondent) and each shall have ownership thereof.

(7) In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to s.106A of the Family Law Act 1975 (Cth) the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorise, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

1. Otherwise all extant applications are dismissed and the matter removed from the list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 310 of 2014

MR WATERS

Applicant

And

MR DURRANT

First Respondent

And

(OMITTED) PTY LTD

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings have had a tortured history.  They were commenced by the de facto Applicant filing an application for property orders on 3 July 2014.  I note that the final hearing in the matter did not proceed until November 2016. In the intervening, very lengthy period, the de facto Applicant has amended his application on more than one occasion.  He filed an amended application on 31 October 2014 and filed a further amended application on 16 September 2015.  At trial, the Applicant sought orders which differed from any of those as contained in his applications, and the orders which he sought were as contained in an outline of case document filed by him and dated 12 August 2016.

2. The de facto First Respondent likewise amended her response document as the proceedings progressed, and by amended response to the initiating application filed 10 July 2015 she sought the following orders:-

   “(1)   that the applicant do all acts and things and sign all documents necessary to transfer to the respondent – at the expense of the respondent – all of his right, title and interest in the property situated at and known as Property L, being the land more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (the property);

   (2)     that the applicant do all acts and things and sign all documents and pay all fees and outstanding accounts necessary to remove the caveat(s) secured over the property by (omitted) Pty Ltd:

   (3)     that the applicant retain in his sole possession all dogs, other livestock and plant and equipment already in his possession;

   (4)     that the applicant should pay into the (omitted) credit account funds used to finance the applicant’s first insolvency debt, thereby reducing the current (omitted) credit account to $140,000.”

3. Both parties confirmed at the commencement of this hearing, the parties being litigants in person, that the orders as sought by them were for the de facto First Respondent as contained in the amended response referred to above, and for the de facto Applicant as contained in the case outline document referred to in paragraph one herein.  I note the First Respondent also filed a document headed ‘List of Material Relied Upon’ which in the top left-hand corner referred to the document as an ‘Outline of Case Document’.  In that document the de facto First Respondent had a subheading of ‘Actual Orders Sought’.  The First Respondent confirmed at trial that the orders which she sought are more properly those as contained in her amended response document.

4. The orders sought by the de facto Applicant in the proceedings were as follows:-

   “…that both the de facto Applicant and de facto First Respondent pay all debts associated with (omitted) Pty Ltd, including the caveat and (omitted) Ford, and divide any profit of the sale of the property.  Assets listed are enough to cover all debts associated with (omitted) Pty Ltd and enough money is left to divide between applicant and respondent;  next, division of sale of the farm starts at $266,861.20 which was the total amount outstanding when de facto Applicant left the property on July 2013;  next, that the de facto First Respondent pay monthly mortgage and any bills associated with the farm until it is sold;  next, that respondent retrieve personal items (books, clothes etcetera), dog supplies and all tools of trade to earn enough to support de facto Applicant’s family;  next, any joint tenancy of the parties’ many real or personal estate is hereby expressly severed.”

5. Each of the Applicant and First Respondent rely upon their outline of case document.  The First Respondent relies upon evidence as contained in her affidavits as sworn 20 August 2015, 9 July 2015 and 9 September 2014.  The First Respondent relies on a financial statement sworn by her and filed on 10 July 2015. The Applicant relies on a financial statement sworn by him and filed on 12 August 2014 and on the evidence contained in his affidavits affirmed 11 September 2015, 1 August 2015 and 28 May 2015. Each of the parties gave some brief evidence in chief in response to questions asked by the Court as to their current financial circumstances. 

6. The Second Respondent became a party to the proceedings pursuant to orders made by Judge Harman on 4 August 2015.  On that day his Honour declared that he was satisfied that the Court was sufficiently vested with accrued jurisdiction, and that it was appropriate for that jurisdiction to be exercised by the Court, so as to deal with and determine any claim made by the parties jointly or separately under the Transfer of Land Act 1958 (Vic) as might deal with or address the caveat recorded against the title to the parties’ property lodged by (omitted) Pty Ltd (‘the Second Respondent’). I note that those orders also provided (in order number 3) for the Second Respondent to file and serve a response within 28 days of the making of that order. Further, the Second Respondent was to file affidavit material on which it intended to rely at trial by no later than 22 July 2016. In fact, the Second Respondent did not file a response document in the proceedings. Nor did the Second Respondent file any affidavit material. There is, thus, no evidence before the Court from that party.

7. When the proceedings were listed on 17 August 2016, the matter was adjourned to the November 2016 Albury circuit sittings for final hearing and with priority.  In August 2016, the parties had still not obtained a valuation of the former matrimonial home, this being the real property known as and situate at Property L, in the State of Victoria and more particularly contained in Certificate of Title Volume (omitted) Folio (omitted) (‘the real property’).  The parties were required by Court order to obtain a sworn valuation of the real property, with the costs of same to be borne equally by the Applicant and First Respondent.  Subsequently, the parties tendered in evidence in the proceedings a valuation of the real property prepared by Mr D of (omitted).  Mr D is a certified practising valuer.  Mr D assessed the value of the real property as at the date of inspection on 19 October 2016 to be $350,000.  Neither party challenged that valuation.

8. The Applicant and First Respondent are the joint registered proprietors of the real property.  On 12 December 2013, a caveat was lodged against the title to the real property with the caveator being (omitted) Pty Ltd ACN (omitted).  The grounds of claim as stated on the caveat were as follows:-

   “As per the deed of guarantee and indemnity entered between (omitted) Pty Ltd and Mr Waters.”

9. The caveat related to an amount claimed by the Second Respondent as an unsecured creditor against the company of which the Applicant was the sole director and shareholder, (omitted) Pty Ltd, trading as (omitted business) (‘the company’).  The sum claimed was $33,104.99.  The Applicant deposed in his affidavit evidence of 28 May 2015 (paragraph 28), that in May 2014 the company was forced into liquidation because in essence he was unable to recover the ‘form, works and tools of trade’ from the First Respondent.  He claimed that as a consequence, he was not able to work and receive income to pay off any outstanding debt. 

10. The Applicant executed and signed, on 11 October 2008, and in his capacity as sole director of the company a deed of guarantee and indemnity with the Second Respondent. As at 30 September 2013, being a few months after separation, the company owed the Second Respondent the amount of $33,104.99.  That amount remains outstanding.  At no time did the First Respondent sign any document giving rise to or authorising the lodging of a caveat against her interest in the real property.  At no time did she sign any document in relation to the terms of trade entered between the Applicant and/or the company and/or the business operated by the Applicant with the Second Respondent.  At no time did the First Respondent sign a deed of guarantee and indemnity in relation to those terms of trade.  She knew nothing about the Applicant’s dealings with the Second Respondent.

11. It is accepted by the Second Respondent that the First Respondent was not a signatory to the deed of guarantee and indemnity and that she was not aware of it.  The First Respondent has sought but not been able to obtain, any real disclosure from the Applicant in respect of the liquidation of the company, save that it was a creditors’ voluntary winding-up.

12. Counsel acting on behalf of the Second Respondent at trial presented the Court with proposed signed consent orders said to be signed by the parties in August 2016. Indeed, those same proposed consent orders had been presented to the Court at the hearing on 17 August 2016. Each of the Applicant and First Respondent however had withdrawn their consent to the making of orders, and thus on 17 August 2016 the matter, to the extent of the Second Respondent’s involvement, did not proceed by way of consent orders. The matter was adjourned for trial. The Second Respondent nevertheless instructed an agent to attend Court and at the commencement of the trial present the same minutes in relation to which the Applicant and First Respondent’s consent had long been withdrawn. This was inexplicable. The Second Respondent further put no evidence before the Court. Upon obtaining further instructions from the Second Respondent, Counsel appearing at the trial indicated to the Court that if an order of the Court was that the real property was to be transferred to the First Respondent, then the Second Respondent would, as a consequence, withdraw the caveat lodged against the title by the Second Respondent.  The Second Respondent conceded that it had no claim to the First Respondent’s interest, as determined by the Court, in the real property.

Background of the relationship

1. Facts stated in these reasons are findings of fact on the balance of probabilities.

2. The Applicant de facto husband (‘the Applicant’) was born on (omitted) 1967.  He is now aged 49 years.  He was a self-employed (occupation omitted).  At trial, he gave evidence that he was no longer self-employed, but rather an employee worker in the (omitted) industry. His evidence was that his income is between $800.00 and $950.00 gross per week, resulting in a less than average weekly wage. He remarried in (omitted) 2013 and no evidence was before the Court as to his wife’s financial circumstances. In evidence, the Applicant claimed that his wife was not in receipt of income. 

3. The Respondent de facto wife (‘First Respondent’) was born on (omitted) 1970, she is now aged 46 years.  She is recovering from an injury sustained to her shoulder in an assault perpetrated upon her at her home.  She is in receipt of Centrelink benefits of approximately $1000 a month.  The evidence of the First Respondent is otherwise that she suffers from depression and takes antidepressant medication as prescribed by her general practitioner. 

4. The Applicant and First Respondent (hereafter, ‘the parties’) commenced their cohabitation in or around 1991, and they separated on 27 July 2013.  Their cohabitation period was thus one of some 22 years.  There are two children of their relationship, Ms H born on (omitted) 1998, who is now 18 years of age, and Mr J born on (omitted) 1995, who is now 21 years of age.  Each of the children live independently. 

5. When the parties commenced their cohabitation, they moved to live in a unit in (omitted). They were both gainfully employed.  After the Applicant’s dismissal from his then-employment, the parties moved into a bungalow in the First Respondent’s parents’ backyard, rent-free.  The Applicant then obtained employment at another location in (omitted) before being dismissed from that position.  Subsequently, the First Respondent’s father gave the Applicant a job at (business omitted) as a (occupation omitted).  It was agreed between the parties that they would live off the wage then earnt by the First Respondent, and bank the Applicant’s wage until they had sufficient money to buy (omitted) and a truck.  The parties then determined to open their own small (omitted) business, (omitted).

6. In 1993, (omitted business) (‘the parties’ business’) became a registered business, and the parties commenced trading.  The parties continued to live rent-free on the First Respondent’s parents’ property.  The parties were also assisted by the Applicant’s parents who mortgaged their home for $30,000 to help their son establish and progress the business. The funds advanced by the Applicant’s parents were applied by the parties to purchase a truck.  The funds were repaid by the parties into a loan account of the Applicant’s parents, held with the (omitted) Bank at a scheduled repayment of approximately $78 per week.  A lump sum of approximately $12,000, being the balance outstanding on the loan, was repaid to the Applicant’s parents in 2003. 

7. As (business omitted) became busier, both the Applicant and First Respondent left their employment at (business omitted) and commenced to attend to the operating of their business.  The parties’ first child, Mr J was born in 1995.  The First Respondent suffered postnatal depression following Mr J’s birth. In 1998 the First Respondent became pregnant with the parties’ second child, Ms H, who was born in (omitted) 1998.  The parties, at that time, moved from the home of the First Respondent’s parents to rental accommodation in (omitted) and then (omitted).  The First Respondent again suffered postnatal depression following the birth of Ms H. The Applicant continued to work in the business and such work involved long hours and extensive periods away from home. The company was the main source of income for the parties and for the family for over 20 years. 

8. In late 1999, the parties moved to Canberra so that the Applicant could spend more time with the First Respondent and their children.  The Applicant was still required to travel with his work.  The First Respondent felt isolated and lonely and the parties returned to the (omitted)/(omitted) area. 

The real property

1. In approximately April 2003, the First Respondent’s parents provided funds toward the acquisition by the parties of the real property for a purchase price of $236,000. The First Respondent’s evidence is that her parents gave her the sum of $40,000 to use as a deposit to enable the parties to obtain borrowings to complete the purchase. Some part of that sum was paid as a deposit on the purchase price of $236,000 of 10 per cent (being $23,600), paid by the First Respondent’s mother on the day of the auction to (omitted) Real Estate. The First Respondent’s parents were guarantors for the parties’ home loan.  The Applicant concedes that some moneys were advanced by the First Respondent’s parents, albeit his concession is that the monies were in the sum of $17,000. He does not acknowledge the payment of the deposit. However, on the evidence, the Court accepts the account of the wife. The parties agree that they jointly provided $12,000 toward the purchase price and that a first home buyers grant was received by the First Respondent in the sum of $7000. 

2. The remaining balance to secure the purchase of the real property inclusive of stamp duty and other costs of purchase was loaned from (omitted) Bank in (omitted), New South Wales resulting in a mortgage of approximately $200,000.

3. During the period of cohabitation both parties contributed extensively to the maintenance of the real property.  The Applicant made improvements which included constructing a 150,000 litre aboveground concrete water tank; a 60,000 litre underground concrete tank; a water bore; stock water troughs; major repairs to the well; a gravel driveway and a dam.  The parties established lawns and added gardens and trees to the real property.

The business

1. The First Respondent acted as bookkeeper of the company, from about 1996 in addition to her home duties role.  The Applicant claimed in his evidence that the First Respondent failed to lodge taxation returns between 2003 and 2008 for the business, thus incurring debts to the Australian Taxation Office in an amount of over $200,000.  The First Respondent denies the Applicant’s allegations.  Her evidence is that in 2004 she stopped doing the book work for the business as the Applicant had become emotionally abusive and financially controlling.  The Applicant’s stepfather, Mr H, took over the administration, including taxation issues, of the company.  It was in the period when Mr H was performing that job that a tax debt accrued. 

2. Action was taken by the Australian Taxation Office which led to the company being placed in receivership.  The Applicant’s evidence was that, after hiring accountants to assist he and the company, he was required to refinance the real property to pay the debt owing to the Australian Taxation Office. That refinancing occurred with the knowledge and consent of the First Respondent, albeit that her evidence was that she was unhappy about the need for that action. 

1. In approximately 2010, $290,000 was advanced to the Applicant and First Respondent by way of a second bank mortgage secured over the real property. The debt owed to the Australian Taxation Office was extinguished. The First Respondent alleged that around this time the Applicant became a bankrupt. The First Respondent put no evidence before the Court to support her allegation that the Applicant had entered into bankruptcy on either a creditor’s or debtor’s petition.  It would appear that the liquidity problems were that of the company, and not the Applicant personally, and I accept the Applicant’s evidence that he has never been made a bankrupt.

Other evidence

1. In 2009 the First Respondent inherited $18,000 from her grandmother.  The Court accepts that sum was applied to the general living expenses of the family. 

2. Throughout the marriage, each of the parties cared for their children and applied themselves to the support of their children, both financially and emotionally, through to adulthood.  The First Respondent was engaged in home duties to a greater extent than the Applicant. The Applicant was engaged in the activities of the business and was often away for work purposes.  Each of the Applicant and Respondent made claims against the other as to their failings as a parent.  The Court finds that both contributed to the welfare of their family and that no unequal contribution exists in relation to that contribution.

3. The First Respondent began suffering from depression in or about 1992 when she witnessed a two year old boy hit and killed by a car in (omitted).  She developed postnatal depression after the births of each of her children. She felt completely isolated by the Applicant on the property which is a farming property.  In 2006 the First Respondent suffered “a total nervous breakdown”.  She sought help from the (omitted) mental health service and was provided with counselling and other assistance.  She did for a time, but no longer, consume alcohol to excess but has not consumed alcohol since September 2013 on her evidence.

The parties’ dogs

1. The parties’ dogs were the subject of considerable dispute between the parties.  That dispute was as to how many dogs the parties had; the value of the dogs; whether the dogs had litters and if so, how many; how many dogs had been sold and for what price; and the potential value of frozen semen which the First Respondent claimed to be owned by the Applicant, and stored with a company called (omitted). 

2. In 2013, the parties employed a Mr D to look after the parties’ dogs. The Applicant was at the time contracted, in Darwin, to (business omitted). The parties, in July of that year, separated. The Applicant alleges that the First Respondent ordered Mr D off the real property and threatened him with trespassing.  The Applicant claims the welfare of the dogs on the real property began to suffer to the extent that he lost five dogs within the first seven days of rescuing them from the farm due to dehydration, poorly kept unhygienic facilities and lack of nutrition as provided to them on the real property under the supervision of the First Respondent.  The Applicant in his affidavit of 28 May 2015 annexed photographs of his dead dogs.  He blamed the First Respondent for her neglect of the dogs and their consequent demise.  The First Respondent denied that she ‘ordered Mr D off the property and threatened him with trespassing’. The First Respondent said that in fact Mr D was a very unwell man and not coping with the day-to-day care of the 20 large dogs entrusted to him by the Applicant.  The First Respondent said in paragraph 23 of her affidavit of 9 July 2015 that:- 

   “I became aware the dogs had not been exercised or taken out of their cages for six weeks.  No new bedding had been provided.  The water containers were full of slime and general hygiene was sorely lacking.  I politely and kindly asked him to leave suggesting that the job was physically beyond him at the time.  He passed away some six weeks later.  I deny that I neglected the dogs to the extent that their welfare declined which led them to dying following Mr Waters’s retrieval of them from the farm.” 

3. The First Respondent, in her affidavit sworn 9 July 2015, deposed to her belief that the asset pool included the (omitted) business known as (business omitted) with a value unknown; frozen semen at (omitted) with an estimated value of $50,000; dogs with an estimated value of $50,000; and a dog float with an estimated value of $4,500. 

4. The First Respondent claimed the Applicant’s (omitted) business was a large and profitable enterprise.  She claimed it to be largely a cash business.  The Applicant in evidence said that he had some eight dogs which ranged in age from 10 years to 18 months and that he considered them pets.  He said that he bred his dogs to the extent of one or two litters a year and that the semen in storage did not belong to him, save for two breeding units with a value of approximately $500 a unit.  His evidence was that there is no real value to the dogs owned by him or in his possession, and nor was there any value attached to the frozen semen. 

5. The First Respondent went on to depose that the photograph of the dead dogs provided by the Applicant was the first time that she had been informed of their deaths and that the Applicant had collected the dogs from the farming property in early January 2014 without her knowledge.  At that time, the dogs were in good health.  The dogs the Applicant did not remove from the property were the retired breeding females and substandard dogs. 

6. Whatever the history between the parties as to the care of their dogs or otherwise, what is clear on the evidence is that the parties bred dogs and both have continued to do so to some extent since separation.  There is no evidence before the Court that any of the dogs held by either of the parties have any significant value.  There is also no evidence before the Court that the frozen semen has any significant value. 

Other assets

1. The other assets in contention between the parties is limited plant, equipment and a number of joint assets which were located at the real property.  The Applicant was advised by the First Respondent and her solicitors, that before he removed any of the items on the real property they were required to be valued for the purposes of these proceedings.  I accept that the Applicant ignored the requests for valuation and that he attended upon the real property in early 2014, and in December 2013, both in the absence of the First Respondent, to remove plant and equipment from the real property.  His evidence is that he has not had access to the real property for three years and that the parties’ plant, equipment and other jointly-owned assets remain on the property.  The Court is satisfied on the evidence of the First Respondent and in part that of the Applicant that is not the case and that the Applicant attended upon the property without the First Respondent’s knowledge and consent to take what items it was that he desired.  Indeed, the Applicant’s evidence in paragraph 28 of his affidavit, affirmed 1 July 2014 is that at the time he attended at the real property in mid-December 2013 (in the company of two mates) he collected most of his 20 dogs, his boat, its trailer, a four-berth dog trailer, a mincer and a (omitted) Toyota wagon, registered in “my mate’s name as he legally owns it”. 

Asset pool

1. The asset pool is comprised of the following:-

   a)the real property with a value of $350,000 and a current mortgage of $296,651.  Equity $53,349;

   b)the dogs and frozen semen of value unknown save little or no value;

   c)the plant and equipment left on the real property- value unknown;

   d)the motor vehicle of the Applicant ((omitted)) with an estimated value of $1000. The First Respondent has no vehicle;

   e)bank savings, shares and interest in any other real property – nil;

   f)personal debts of both parties- minimal;

   g)the Applicant’s business in liquidation with company debts of approximately $45,000 as asserted by the Applicant. See however paragraphs 39, 40 and 41 of these reasons; and

   h)the First Respondent’s superannuation is approximately $3000. The Applicant gave evidence that his superannuation entitlements are similar in quantum.

2. In respect of the mortgage repayments, the parties were ahead in their minimum repayments in the sum of approximately $20,000 at the time of separation.  The (omitted) account was $270,659.09 in debit on 12 October 2013. The First Respondent’s evidence was that the Applicant ceased mortgage repayments in August 2013, just after separation. He was no longer residing in the former matrimonial home being the real property.  The First Respondent used such credit as was in the mortgage account until commencing to pay the minimum mortgage repayment amount of $1253 a month until May 2016, when the First Respondent ceased making repayments altogether.  She has approached the bank and has a period up to 18 November 2016 where no mortgage payments are required to be paid.  At the time the First Respondent was meeting the mortgage repayments her parents were helping her with that debt, and the First Respondent was, and is retraining to enable her to be gainfully employed. 

3. The Applicant failed to pay company tax in December 2013.  The company went into liquidation voluntarily on 29 May 2014.  Mr C was appointed the liquidator.  The total claimed creditor amount is a sum of approximately $123,299.62. It includes the unsecured amount owing to the Second Respondent. The Applicant incurred company debt following separation and the First Respondent had no involvement or knowledge of same and nor did she receive any benefit.

4. Introduced in evidence as an exhibit before the Court on 21 April 2015 was correspondence from (omitted) Accountants, dated 10 April 2015.  Included in that correspondence is, relevantly, the following:-

   “In respect to your query on those creditor details in this administration, annexed is a schedule of same, whilst in regard to any guarantee Mr Waters may have provided, I cannot comment, except what is relevant to your client is the demand I have issued against the director personally for the amount of $71,873.98. 

   The background to my claim pertains (sic) monies withdrawn by Mr Waters from 1 November 2013 until my appointment date for non-business-related purposes to the detriment to those creditors of this administration.”

5. The monies withdrawn by the Applicant relate to a period being some months after separation and are entirely monies applied by the Applicant for his own purposes and benefit. 

Conclusion

1. The First Respondent’s direct financial contribution by means of her parents and inheritance will provide some small adjustment in her favour. Additionally, the Court finds the Applicant has removed considerable plant and equipment from the real property which has enabled him to continue to earn an income. Its value is not before the Court because he claimed to not have removed it. There is very little equity in the real property and this is currently a diminishing asset.

2. The factor’s as set out in s.75(2) of the Family Law Act 1975 (Cth) also favour the First Respondent. She has not the earning capacity nor income of the Applicant and is not likely to have in the future. This is a very important consideration. The Court determines that orders which are just and equitable provide for the First Respondent to retain ownership of the real property with the Applicant to transfer his very small equity in same to her. He can otherwise retain that which he has.

3. The applications will be otherwise dismissed. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 February 2017