WERNER & WERNER

The Family Court of Australia considered property adjustment orders pursuant to section 79 of the *Family Law Act 1975* (Cth) between Mr Werner (the applicant husband) and Ms Werner (the respondent wife). The parties had resolved their parenting dispute by consent orders, but were unable to agree on the division of their property following their separation after 26 years of marriage.

The court was required to determine the legal issues surrounding the characterisation of a transfer of property from the wife's parents to the wife, and whether it was a gift or a transfer for consideration. Further issues included the appropriate valuation of the wife's superannuation interest for the purposes of property division, the treatment of funds withdrawn by each party post-separation ("add backs"), and the overall just and equitable division of the parties' assets and liabilities, taking into account their respective financial circumstances and contributions.

Forrest J reasoned that the transfer of the Brisbane property from the wife's parents was a gift, despite the wife's assertion that something was to be provided in return, noting the consideration stated on the transfer form was "natural love and affection". The court determined that superannuation interests should be valued as at the date of trial, not the date of separation, and that "add backs" should only be considered where a party has unilaterally depleted assets in a manner not conducive to reasonable living expenses post-separation, accepting a concession from the husband regarding $10,000 of his withdrawn superannuation. The court found that justice and equity demanded property adjustment orders given the significant disparity in the parties' assets and the husband's health and employment prospects.

The court ordered that the wife pay the husband $60,000 within one month in exchange for the release of his caveat on the Town C property, which the wife would then retain as her sole property, indemnifying the husband against the mortgage. The husband was to retain his motor vehicle and superannuation interest, while the wife was to retain her motor vehicle and the balance of her superannuation. The parties were to divide household furniture by a process of the wife preparing two lists and the husband selecting one. The wife was also ordered to pay the husband's costs of and incidental to a specific application for a single expert, and costs thrown away by a second compliance hearing.