Welsh and Welsh

[2009] FamCA 505

FAMILY COURT OF AUSTRALIA

WELSH & WELSH [2009] FamCA 505

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Mason and Clauson (1995) FLC 92-595; 18 Fam LR 693

APPLICANT: Ms Welsh

RESPONDENT: Mr Welsh

FILE NUMBER: SYF 4116 of 2006

DATE DELIVERED: 17 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 21 August 2008 and 4 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Batey

SOLICITOR FOR THE APPLICANT: Solari & Stock Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Sansom

SOLICITOR FOR THE RESPONDENT: Moira Ryan Lawyers

Orders

1. That the husband forthwith do all things and sign all documents necessary to transfer his interest in the property known as C property in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier … to the wife and simultaneously, that the husband do all things and sign all documents necessary to pay all monies so as to discharge the mortgage on the said property to ING Mercantile Mutual Bank Limited.

1. That within 28 days the husband pay to the wife the sum of $13,639 by way of property adjustment.

1. That the wife forthwith do all things and sign all documents necessary to transfer all shares held by her in the company S Pty Limited to the husband and the husband hereby shall release and indemnify the wife in relation to any debt, loan or liability in relation to the said company.

1. That the wife forthwith prepare 2 lists of antiques, furniture, furnishings and collectables, each list to be of similar value and present the lists to the husband within 14 days.  Upon the husband nominating in writing to the wife which list he chooses the property in that list will become his sole property and the property in the other list will become the sole property of the wife.

1. That the wife transfer to the husband her interest in the 31 foot timber and fibreglass boat.

1. That the wife forthwith transfer to the husband her interest in the proceeds of sale of the 31 foot fibreglass boat currently held by Mr O.

1. That the husband forthwith pay any liability in relation to the Commonwealth Bank Streamline Account held in the joint names of the husband and the wife.

1. That the costs of discharging the above mortgage and any amount in excess of $28,316  in the case of the mortgage and any amount in excess of $1,678 in the case of the CBA joint account liability are to be paid by the parties in equal shares.

1. Unless otherwise specified in these orders:

(a)       Each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;

(b)      Each party be solely entitled to any monies, shares and debentures which stand in such party’s name as at this date;

(c)      Each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other party.

(d)      Each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.

1. That both parties have leave to relist these proceedings on 7 days’ notice in relation to the implementation of the orders.

1. That the above orders not commence operation until 1 May 2009.

1. That both parties have leave to relist these proceedings at any time prior to 1 May 2009 for submissions in relation to the form of the orders only.

1. That all exhibits be returned.

1. That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of that deed or instrument being forwarded to him or her or his or her solicitor, the registrars of the Family Court, Sydney Registry, are hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.  The party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this order, to be taxed if not agreed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF 4116 of 2006

MS WELSH

Applicant

And

MR WELSH

Respondent

REASONS FOR JUDGMENT

INTRODUCTION AND APPLICATIONS

1. These are contested property proceedings. The applicant is Ms Welsh, to whom for convenience I shall refer as “the wife”. The respondent is Mr Welsh and for convenience I shall refer to Mr Welsh as “the husband”.

2. The wife seeks orders to the following effect:

   1.    That the husband transfer to her his interest in the former matrimonial home at [C], New South Wales

   2.    That within 28 days he pay to her the sum of $250 000

   3.    That the wife transfer to him all shares held by her in the company [S] Pty Limited and that he release and indemnify her in relation to any debt, loan or liability of the company

   4.    That the parties divide all furniture, furnishings, antiques and collectables equally between them

   5.    That the wife transfer to the husband her interest in the 31 foot timber and fibreglass boat

   6.    That the wife transfer to the husband her interest in the proceeds of sale of the fibreglass boat currently held by [Mr O]

   7.    That the husband pay any liability in relation to the Commonwealth Bank Streamline Account held in the joint names of the parties

   8.    That each party be declared to be the sole owner of all other property and superannuation in their possession and/or control

   9.    That each party be solely liable for and indemnify the other against any debt, loan or liability in their name and

   10.    Certain enforcement orders.

3. On the other hand, the husband seeks orders to the following effect

   1.    That the parties sell the former matrimonial home and after paying costs of sale including legal costs the proceeds be paid 60% thereof to the wife and 40% thereof to the husband

   2.    That the wife transfer her shares in [S] Pty Limited to the husband, resign from any office held by her in the company and the husband indemnify the wife for any debt, loan or liability of the company

   3.    That the husband be declared the sole owner of the antiques and that the parties divide the remaining furniture and household contents by the “pick a pile” method

   4.    That each party be declared the sole owner of their interests in superannuation and

   5.    Certain enforcement orders.

BACKGROUND

1. The husband was born in January 1950. The wife was born in October 1951. They married in March 1977 and they separated in October 2005. There are two children of the marriage, R born in January 1981 and B born in December 1982.

2. Just prior to the parties’ marriage they had purchased the former matrimonial home at C for $41 000. This was funded from the wife’s savings of approximately $9 000, the husband’s savings of approximately $7 000 and a loan from E Company of approximately $26 000.

3. At the time of marriage the husband was working at E Company. The wife was working with W Company Pty Limited.

4. In June 1980 the parties purchased an investment property at L for $49 500. This was negatively geared. It was funded from savings of $10 000 and the balance was borrowed.

5. In 1980 the parties undertook an extension and renovation of their home. They borrowed approximately $10 000. The extension consisted of a third bedroom, laundry, toilet, large rumpus room and veranda. Much of the work was undertaken by the husband. I shall refer to this again below.

6. The wife continued to work until shortly before the birth of the parties’ elder son R. Some months after Ry’s birth the wife commenced part time employment at a supermarket. The wife continued this work until she became pregnant with B. The wife subsequently undertook some child minding, although somewhat irregularly and later some housecleaning work for approximately 5-6 years.

7. In 1988 the husband ceased his employment with E Company and went into business with a friend Mr F. They established a company F and Welsh Pty Limited through which to operate their business. The husband and Mr F were the directors of the company. Initially they operated the business from Mr F’s residence. 

8. For a time very limited income was produced from the business and the husband also worked as a waiter at a restaurant.

9. In 1989 the parties sold their investment property for $147 500. The net proceeds of sale were approximately $100 000. This money was used to fund further renovations to the home. This involved building a brick exterior, building a large garage, constructing an in-ground swimming pool and spa and building fences. The husband undertook some of the physical work involved assisted by the wife.

10. In late 1991 or early 1992 the husband and Mr F moved their business office to H. Then in 1993 they moved the business again this time to operate again out of Mr F’s home in an endeavour to save the costs of rent.

11. Between 1994 and 1997 the wife worked as a waitress.

12. In September 1995 the family took a holiday to the Gold Coast and Port Douglas.

13. In July 1996 the child R’s baseball team went on a sporting visit to Colorado USA. R was accompanied by the husband. This was funded by drawing down funds on the mortgage.

14. In 1996 the business office was again moved, this time to C.

15. Between 1997 and September 1999 the wife again undertook paid housecleaning work.

16. In July 1999 the parties drew down a further $15 000 on the mortgage to pay the husband’s credit card debt.

17. In September 1999 the wife commenced full time work with U Company Pty Limited.

18. In approximately January 2001 Mr F resigned from the company which left the husband as its sole director.

19. In approximately 2002 the parties renovated their bathroom which cost in excess of $8 500. This was funded by drawing down on the mortgage.

20. In 2003 the husband had a 10 day fishing and golfing holiday with friends in New Zealand.

21. In 2003 the husband purchased an interest in a 41 foot boat the other interest being owned by a relative, Mr O. Subsequently the husband drew down on the mortgage to fund the purchase of motors for the boat.

22. In September 2003 the wife commenced her current full time employment at G Organisation.

23. In March 2004 the husband purchased the business of a colleague Mr N for $110 000. This was paid off over a period of 2 years.

24. Changes to the regulation of the industry meant that the husband had to undertake some retraining and accreditation examinations in order to obtain the required licence. He did this over a period of approximately 12 months.

25. A couple of months later the husband purchased an interest in a racehorse.

26. Sadly the husband’s mother died in October 2004. The husband inherited $169 000 cash from her estate and shares. He has also received $34 752 being his one half share of the net proceeds of sale of his late mother’s residential unit in her retirement village.

27. As indicated above, the parties separated in October 2005. The husband left the former matrimonial home. The wife and the parties’ daughter B remained living in the former matrimonial home.

28. Since the parties separated the husband has paid mortgage payments and various household accounts. I shall refer again to these matters below.

29. In January 2006 the wife purchased a 2004 Toyota Corolla motor vehicle for approximately $19 000. She traded in her previous vehicle, used her savings of $4000, a gift of $4000 from her mother and the husband paid the balance of $7700 to fund the purchase.

30. In March 2006 the husband gave B $3000. He also gave R money to purchase a refrigerator and some furniture.

31. In July the husband gave the wife $5000 towards the costs of counselling.

32. In November 2006 Mr O sold the boat for $44 000. But he has not yet paid the parties their $22 000.

33. In 2008 the husband also gave $25 000 to B.

THE APPLICABLE LAW

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

2. Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79. This involves four inter­related steps. Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (0 and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

4. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fain LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Mason and Clauson (1995) FLC 92-595; 18 Fain LR 693.

PROPERTY AVAILABLE FOR DIVISION BETWEEN THE PARTIES

1. There were several issues about this as follows.

2. In November 2006 the husband loaned Mr O $35 640. This loan remains outstanding. It was submitted on behalf of the wife that there is also interest owing on the loan. The husband said that he does not propose to press for payment of the interest. Bearing in mind that this is a loan to a relative that is understandable. I do not propose to include any interest in the list of property available for division nor as a financial resource.

3. It was submitted on behalf of the wife that the gift of $25 000 by the husband to B should be added back to the available property. But it was submitted on behalf of the husband that the source of the gift was his inheritance and that the Court should regard this as having reduced his contribution in respect of the inheritance. I accept this.

4. There was said to be some issue in respect of the valuation of the husband’s business by the single expert in the amount of $545 000. Despite quite rigorous cross examination of the expert, Mr A, in my view his methodology and opinion of value remained unshaken. Learned counsel for the husband conceded this and accepted that the evidence supported the company S Pty Limited as having a value of $545 000.

5. Accordingly, the property available for division consists of the following:

The assets

1.	Former matrimonial home at C	915,000
2.	S Pty Limited	545,000
3.	Husband’s interest in race horses	1,000
4.	Husband’s shares	4,737
5.	Husband’s Challenger investment	47,765
6.	Husband’s Perpetual investment	68,949
7.	Husband’s loan to Mr O	35,640
8.	Husband’s Commonwealth Bank account	94,000
9.	Husband’s Burns Philip share proceeds (add back)	282
10.	Husband’s Rinker group share proceeds (add back)	4,797
11.	Husband’s superannuation	136,073
12.	Wife’s Toyota Corolla motor vehicle	12,900
13.	Wife’s superannuation	53,621
14.	Fibreglass boat	2,000
15.	Sale proceeds of boat	22,000
1,943,764

The Liabilities

1. The parties have a mortgage liability of $28,316 to ING Direct and a liability on their Commonwealth Bank Streamline Account of $1,678.  this is a total of $29,994.

Net Property 1,913,770

The husband’s gambling

1. A major issue in these proceedings is the allegation by the wife that the husband has wasted substantial funds, which otherwise would have been available to the family, through his gambling activities.

2. The wife said that the husband was in charge of managing their household finances certainly in relation to the payment of the mortgage and household bills apart from the food bills which she attended to. The wife said that the husband gave her housekeeping money each fortnight. Apart from this she said that she did not know how much he earned or how he spent his income but she had the view that he spent a considerable amount of money on various forms of gambling.

3. The husband said that he played poker machines at the C Club which he joined in approximately 1991. He played golf each Thursday and Saturday. He attended the Club most afternoons after work and played the poker machines until approximately 2006. He said that he stopped playing poker machines at this Club because the payout rates were reduced at approximately this time.

4. The husband joined a punting club at a Hotel in 2002 or 2003.

5. In 2004 the husband purchased an interest in a racehorse. In 2005 the husband purchased an interest in another racehorse.

6. At Christmas 2005 the husband informed the wife that he had spent $5,000 purchasing shares in more horses.  The husband conceded that he had spent almost $15,000 maintaining race horses in which he had an interest.  The wife said that the husband spending money on gambling was the source of regular arguments between them going back to approximately 1990.  At that time the wife asked the husband how much he was spending at gambling and he replied $250 a time.  The wife said at this time he was attending the Businessmen’s Club at two or three times a week and she was very concerned.  She said that at this time he was giving her $200 per week for housekeeping expenses. 

7. The wife said that between two and five times per year the husband travelled away from Sydney for weekends or a week at a time to attend conferences and play golf often staying at luxury golf resorts.  The last weekend in October each year would be spent by the husband attending the Tumut Cup horse race and playing golf with his friends.

8. In addition to gambling on poker machines and race horses the husband would gamble on golf games and card games.

9. Mr D is a close friend of the husband and wife.  He has also had a long association with the C Golf Club and was Captain of the Club between 1999 and 2003.  He said that until approximately 2002 he would call at the Club every week day between approximately 5:30 pm and 6:30 pm.  He said that the husband was almost always at the Club playing the poker machines on most occasions when he was there.

10. Mr D said that he and the husband had often engaged in gambling activities together and that they shared an interest in horse racing.  In approximately 2004 they each owned an interest in a race horse which won approximately $35,000 in prize money.  Often when this horse competed, their wives would accompany them to the race meeting. 

11. It is alleged by the wife that hundreds of thousands of dollars of marital funds had been lost by the husband in his gambling activities.  In cross examination of the husband the wife has endeavoured to re-visit details of redraws on the mortgage and withdrawals of cash from various bank accounts.  Considerable attention was given to such matters on behalf of the wife.

12. The wife undertook an analysis of the statements of account for the parties’ joint CBA Streamline Account operated solely by the husband and the husband’s CBA Gold Mastercard Account.  This demonstrated that for the twelve month period prior to the parties’ separation in October 2005 the husband withdrew cash amounts from these accounts to a total of $81,940.  For the previous twelve month period his cash withdrawals from such accounts came to the total of $59,055.  This analysis was presented to the husband on 20 August 2008 the day before the first day of the hearing.  To provide the husband an opportunity to answer this material I adjourned the hearing at the end of the first day, namely 21 August 2008.  The husband filed an affidavit in response to this material.  He said that the monies withdrawn were principally expenses incurred in the conduct of his business or for his personal living expenses.  He also conceded that he used some of the money for the purposes of gambling.  He said it was his practice to pay most of the business expenses and personal expenses by way of cash. 

1. The husband made a calculation of his business expenses paid from the cash withdrawals referred to by the wife above.  For the 12 months prior to separation the business expenses funded in this way came to total of $5,294 out of cash withdrawals totalling $81,940.  For the twelve months previous to that the business expenses funded from the $59,055 of cash withdrawals came to $4,168.

2. Various gambling records were tendered in the evidence in support of the wife’s submission.  These included TAB Reports relating to betting by the husband on race horses.  These records however, related to periods after the parties separated.

3. Poker machine records involving the husband’s use of such machines at the Rugby Club and the Leagues Club on 9 April 2006 were tendered. The turnover on that occasion was $2,973.  But commonsense would dictate that turnover on a poker machine can mean little in the absence of explanation by an expert about what investment might be made to achieve such turnover.

4. Some limited material was tendered from the C R.S.L. Memorial Club Limited relating to the husband’s use of poker machines but this related to a three month period well after separation. 

5. The jackpot and short pay records from the C Golf Club were tendered for the twelve months prior to the parties’ separation.  These records show that the husband won a lot of money during that period from poker machine payouts, his winnings coming to total of $28,086.29.  The rate of payouts increased significantly in the five months prior to separation which probably indicates an increase in the level of the husband’s gambling over these months.

6. What picture can be drawn from this evidence?  As the wife has asserted and the husband has conceded, the husband has been involved in gambling throughout the marriage.  He has engaged in different forms of gambling, but using poker machines and betting on race horses appear to have been the main forms. In addition the husband has spent significant amounts of money on the ownership, training and maintenance of race horses.

7. The difficulty in terms of the relevance of this activity in these proceedings is that the effect of the gambling on the family’s funds is far from clear.  But the husband admitted to the wife in the early years of the marriage that there was a cost and that the cost at that point was $250 a time.  As indicated above, this was more money than he was providing to the wife to meet the household expenses at the time.

8. In his latest affidavit the husband endeavoured to explain his disposition of the cash withdrawals referred to by the wife in her analysis.  He annexed an estimate of his average weekly expenses.  This came to $3,070 per week and included $485 per week for entertainment/hobbies.  This would be golf, socialising at clubs and gambling.  This is more than $25,000 per year.  But these estimates relate to his very recent living circumstances and do not appear to me to be representative of the years of the marriage.

9. In the end result of all this material about gambling, I have the view that it is more likely than not that the gambling and golfing has come at a cost to the husband.  The difficulty is that it is impossible to quantify.  I have not been persuaded by the wife, however, that hundreds of thousands of dollars have been lost to gambling over the years.  But I am satisfied that it is more likely than not that the cost is significant.

10. There has been no expensive hobby enjoyed by the wife over the years.  If there had been one might have felt comfortable setting such off against the costs involved in the husband’s gambling.  In the end, in my view, it is appropriate to take the approach of noting that significant funds must have been spent by the husband on gambling over the years of the marriage and to take this into account pursuant to s.75(2)(o) of the Act in a general way.

CONTRIBUTIONS

1. This was a long marriage during the course of which the parties raised two children. 

2. As indicated above, the parties had purchased the former matrimonial home at C before their marriage.  Each made a substantial contribution to the deposit the consequence being that only a modest home loan was required to fund the purchase of their home.

3. As also indicated above the home has been renovated in a very significant manner on two occasions.  Much of the physical work involved was provided by the husband on each occasion.  The wife also undertook some of the work.  The parties also had assistance from the wife’s brother and their friends and relatives.  At the relevant times, the wife was also busy working in the home and, in particular, undertaking the major care of the parties’ two then young children.

4. I have referred to the employment history of each of the parties.  The husband has had continuity of employment in operating his business.  He also undertook the evening work in the second job referred to above when money was tight in the business.  He has been the main breadwinner.  But the wife has worked outside the home in income producing work to the extent that her primary responsibilities for home and children have permitted.

5. So the overwhelming financial contributions have been made by the husband. 

6. In relation the parties’ respective contributions to the welfare of their family, made by them as homemakers and parents, there can be no question that the overwhelming contributions in this area were made by the wife.  This was the manner in which the parties arranged their responsibilities.  But it is not to say that the husband did not make a reasonable level of contributions in these areas because he did. 

7. When the parties purchased their home it was sold by a deceased estate.  The husband cleared out the home and cleaned it.  The yard was overgrown. The parties cut back the vegetation and established a garden as a joint enterprise.

8. The husband re-painted both the former matrimonial home and the investment property.  The wife assisted him in this in the preparation work and some of the lighter painting tasks.  He maintained the outside of the home including the garden.  He undertook some of the household chores.  He assisted the children at their various stages of development.  He also assisted them in relation to their various and numerous sporting activities as did the wife.

9. Following the parties’ separation, the wife has continued to have the benefit of residing in the former matrimonial home.  The husband had been sleeping at his office.  But he has also spent many nights at motels, which has been expensive.

10. Since separation the husband paid $6,859 for painting the former matrimonial home.  He continued to pay the mortgage repayments of $500 per fortnight, council rates, water rates, health insurance for himself and the wife, electricity accounts, telephone landline accounts, broadband, Foxtel and building and contents insurance.

11. In July 2006 the husband gave the wife $5,000 towards the costs of counselling as indicated above.  In January 2007 the husband gave to the wife $7,700 towards the purchase of her motor vehicle as also indicated above. 

12. As I have also said, the husband inherited $169,000 in cash and shares from the estate of his late mother and $34,752 from the sale of her home a year prior to the parties’ separation.

13. Had it not been for this inheritance, in my view, it would have been appropriate for the Court to assess the parties’ contributions overall as having been equal.  But in my view the inheritance changes this, especially having come in on the husband’s side of the ledger, as it were, so late in the marriage.  In these circumstances it would be unfair to the husband to assess the parties’ contributions overall as having been equal.  In my view, clearly they are unequal for this reason.  But only by a modest amount.

14. In my view, the parties’ contributions overall have been 54% by the husband and 46% by the wife. 

s.75(2) MATTERS

1. The husband is 59 years of age and is in reasonable health although he said that he has suffered from some depression.  He said that he might only work for three or four more years.

2. In my view, the husband has the capacity to be able to continue operating his business for some years yet bearing in mind that most people in the workforce seem to work until approximately 65 years of age.

3. The husband’s income for the financial year ending 30 June 2008 was $148,263 after paying tax.  This was slightly more than the previous financial year.  But Australia is in the grip of a global financial crisis.  Whether the husband will be able to earn such income in the current and next financial year must be regarded as being uncertain.

4. On the other hand, the wife is 57 years of age.  There are some difficulties in terms of her health.  She has suffered from intermittent hypertension.  She has experienced a feeling of throat and chest tightness with breathlessness which occurs with exercise and stress.  Her general practitioner Dr E said that the wife has been fairly extensively investigated with a stress ECG which did not show ischaemic heart disease but showed below average exercise tolerance.  Dr E thought this was stress related.

5. The wife works full time at G Organisation.  Her current income is $685 per week.  She said that she works in four buildings spread across a large organisation and is often required to walk more than 15 kilometres a day which she finds difficult. 

6. Despite these difficulties, the evidence is not such that the Court would have a view other than that the wife should be able to continue working in her current capacity for many years.

7. In my view, a consideration of the relevant matters pursuant to s 75(2) of the Act calls for a set off of available property in favour of the wife.  The husband has a much superior capacity to earn income.  And he has been assisted in achieving this position by the efforts of the wife over the years of the marriage.  All other things being equal, the husband will be able to continue to earn income at a higher level than the wife, even if not at the level he has enjoyed during the last couple of years.  He should also be able to build superannuation at a higher level than the wife would be able to achieve on current indications.  In my view this would be the case even though the wife, being younger than the husband, should have more income earning years available to her than should the husband.

8. I note in relation to this matter the submissions by learned counsel for the husband that the husband has a significant amount of his property invested in his business and that if the wife was to invest a similar amount she would be able to enjoy a higher income.  I accept that there is some significance in tis.  But even if the wife did this, in my view, it still would not enable her to achieve income at anywhere near the level of that enjoyed by the husband in recent years.

9. Another significant s.75(2) matter is my finding that the husband has engaged in gambling over the entirety of the years of the marriage and that this has involved significant cost.  However, as indicated above, I am unable to quantify such cost.  Accordingly, in order to achieve a just and equitable order, in my view, all the Court can do is to take this into account in a general way.

10. It is also the case that the husband will enjoy more of the available property than the wife on a contributions basis.  I also take into account the fact that he has annual leave and long service leave credits.

11. In my view, these are significant s 75(2) matters and require some adjustment of property in favour of the wife.  In my view the appropriate adjustment is 6% of the available property.

Conclusion and fourth step

1. The wife is to have 52% of the available property.  This is property with a value of $995,160.  The wife has the following property:

   1.        Toyota Corolla motor vehicle  $12,900

   2.        Superannuation  $53,621

   $66,521

2. Accordingly the wife has property with a value of $66,521.  To achieve property with a value of $995,160 the wife will require additional property with a value $928,640 ($995,160 - $66,521 = 928,640).

3. The wife is most desirous of retaining the former matrimonial home.  This has a value of $915,000.  If the husband was to transfer his interest in the home to the wife, discharge the mortgage and pay the wife $13,639, this would provide the wife with property with a value of $995,160 ($66,521 + $915,000 + $13,639 = $995,160).

4. On the other hand the husband is to have 48% of the available property.  This is property with a value of $918,610.

5. The husband has the following property:

1.	Interest in racehorses	1,000
2.	Shares	4,737
3.	Challenger investment	47,765
4.	Perpetual investment	68,949
5.	Loan to Mr O	35,640
6.	Husband’s Commonwealth Bank account	94,000
7.	Burns Philp share proceeds (add back)	282
8.	Rinker Group share proceeds (add back)	4,797
9.	Superannuation	136,073
10.	Fibreglass boat	2,000
11.	Sale proceeds of boat	22,000
417,243

1. There is no question that in addition to this property the husband will enjoy sole ownership of his business S Pty limited which has a value of $545,000.  On this basis he would have property with a value of $962,243.

2. If the husband was to discharge the mortgage by paying the outstanding mortgage balance of $28,316, pay the liability of $1,678 on the joint Commonwealth Bank Streamline account and pay the wife $13,639, this would provide him with property with a value of $918,610 ($962,243 - $28,316 - $1,678 - $13,639 = $918,610).

3. Accordingly, what I propose is that the husband will discharge the mortgage, pay the CBA joint account liability and transfer his interest in the former matrimonial home to the wife.  The husband will also be required to pay the wife the sum of $13,639 and the wife will be required to transfer her shares in S Pty Limited to the husband.  Otherwise each party will retain the property and superannuation in their control.

4. This will have the practical consequence of the wife having a home for herself unencumbered.  She will be able to continue to work in her present position.

5. On the other hand, the husband will not have the home but he will have sole ownership of his business.  He should also be able to operate the business and enjoy the rewards of this for quite some years yet.  The orders I propose will not affect the potential for the business to continue to operate and thereby provide the husband with a good income.  The husband will have sufficient other property to enable him to place a deposit on a home for himself if he should so desire.  He has previously been able to borrow money and I can see no reason why he would not be able to raise a home loan to enable him to purchase a home.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate: 

Date:  17 April 2009