White & White
[2004] FMCAfam 215
•7 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITE & WHITE | [2004] FMCAfam 215 |
| FAMILY LAW – Property settlement – contributions of the parties – non-financial contribution of husband towards renovations – post-separation contributions including increase of market value of properties – whether parties reached an agreement for property settlement post separation – effect of this agreement – adjustments made in favour of husband over and above orders sought by him – orders made in accordance with husband’s case outline. Family Law Act 1975, ss.72(2), 79(4) Howes (1981) FLC 91-044 |
| Applicant: | ROSSLYN JENINE WHITE |
| Respondent: | ALBERT GEORGE WHITE |
| File No: | BRM3656 of 2003 |
| Delivered on: | 7 May 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 27 November 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hanlon |
| Solicitors for the Applicant: | Twohill Lawyers |
| Solicitors for the Respondent: | Mr Cooper Primrose Couper Cronin Rudkin |
ORDERS
That the Wife’s Application filed on 30 December 3003 be dismissed.
That the land situated at 12 Burrows Street, Russell Island and 9 Susan Street, Russell Island be sold and the net proceeds, if any, be divided equally between the parties and all expenses and debts incurred in selling the land be shared equally.
That the Applicant wife retain the following assets:-
(a)The property at 138 Currumburra Road Ashmore;
(b)Her Ford Fairlane motor vehicle;
(c)The furniture in her possession;
(d)The benefits of any life insurance or superannuation policies in her name only;
(e)The proceeds of all bank accounts in her name only; and
(f)All other assets in her personal possession not specifically referred to above.
That the Respondent husband retain the following assets:-
(a)The property at 16 Bermuda Street, Broadbeach Waters subject to any existing encumbrance;
(b)His Mercedes Benz motor vehicle;
(c)The furniture in his possession;
(d)The benefits of any life insurance or superannuation policies in his name only;
(e)The proceeds of all bank accounts in his name only; and
(f)His AXA shares.
That the Applicant wife be responsible for any credit card debts in her name only.
That the Respondent husband be responsible for any credit card debts in his name only.
That any written submissions in respect of an application for costs be filed and served within 21 days.
That any written submission in response to an application for costs be filed and served within 14 days thereafter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM3656 of 2003
| ROSSLYN JENINE WHITE |
Applicant
And
| ALBERT GEORGE WHITE |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant wife, Rosslyn White, and the respondent husband, Albert White, are both in their sixties and commenced a relationship in 1979 whilst living in South Australia.
The parties are in dispute as to how the agreed pool of assets should be divided and disagree about the effect of a number of transactions, and even whether their conduct in 1998 amounted to a final separation between the parties.
Background
In a general sense, I recite the main events in the history of the parties' relationship as follows:
a)The husband was 63 years old at trial; the wife was 62 years old. The parties commenced cohabitation in December 1979. Thereafter, until the parties married in Whyalla in May 1982 and although they maintained an intimate relationship, they did not live as “man and wife”.
b)The husband was the owner of a kit boat (which he had assembled) called ‘Sasquatch’. In late 1979, the husband, I am satisfied, did sell the boat to the wife (then known as Mrs R J Bristow) for $8,200. Although this is denied by the husband (who instead claims the moneys paid by the wife were a loan used to pay off a debt incurred for the purchase of sales), the documents tendered as exhibit 8 and exhibit 7 corroborate the wife's version.
c)The documents do also in my view reflect that the parties were particular in recording financial transactions and agreements. For this reason I do not accept the wife did contribute $700 as she alleges to the husband's purchase of vacant land at Whyalla from a Government Housing Trust. The husband said the land was worth $9,000 in 1980.
d)Prior to marriage, the husband borrowed funds from the bank to commence construction of a home on his land at Whyalla. I am satisfied that the wife, sold her home in Whyalla and contributed the net proceeds of about $26,000 to the construction of the house. I am also satisfied that the husband did make an additional non-financial contribution to the construction.
e)It follows from my earlier finding that when the boat Sasquatch was sold in March 1981, I should regard the net proceeds of $15,920 as a further contribution by the wife to the construction of the husband's house prior to marriage. In my view there is no real explanation as to how the boat sold to the wife for $8,200 was apparently worth over $20,000 so shortly thereafter. There is certainly no evidence given to the Court by either party that any improvements or modifications to the boat were carried out.
f)The wife asserts that she made further contributions to the construction of the husband’s house (other than those already recorded above) being a contribution from her Whyalla credit union account. She claims the amount was $18,000 (however annexure RJW7 shows a balance in April 1981 of approximately $14,000). It is not possible to accept that the wife contributed more than this sum. I am, however, prepared to accept that she did contribute funds from her savings account towards the construction (including $5,200 which was borrowed in May 1981 (see annexure RJW8).
g)It seems proper to infer that, although I accept the husband did make a physical non-financial contribution superior to the wife in the construction of the Jenkins Avenue property, by July 1983 the parties agree (reflecting the wife's financial contributions) it was fair for the husband's previous sole ownership of the property to be transferred to joint ownership. This, it seems to me, in some ways dealt with what the parties regarded as certain contributions they had made to the property by that time.
h)The parties experienced some volatility in their relationship, (the wife claimed they separated on three occasions), and they decided to move to Queensland to attempt to renew their relationship. The Jenkins Avenue property was sold for $108,000 (gross) and the remaining debt to Westpac was discharged in an amount of $17,600. After sale expenses the wife estimated the net proceeds to be approximately $82,000 which I accept to be the case.
i)The move to Queensland necessitated the wife's retirement from BHP where she had been working for some years and the payment to her in December 1985 of the sum of $22,132 (gross) from the BHP Female Staff Provident Fund. The wife says that with the addition of her long service leave entitlements, redundancy pay and holiday pay she received in total approximately $40,000. No evidence of any tax consequences on these payments was provided to the Court. Although the husband denies the wife received as much as $40,000, the level of particularity evidenced in the wife's material (at times supported by documents), persuades me the wife should be believed in this regard. The wife says the husband obtained a small pay out from his employer, Becketts of about $2,300.
j)The parties jointly acquired a home at 20 Nerang-Broadbeach Road, Nerang for $105,000 - paying cash for same. I am satisfied they did so by utilising the wife's funds (also used for relocation expenses) and the proceeds of sale of the Jenkins Street property.
k)The husband was employed by RACQ as a motor mechanic before he purchased a small delicatessen business in August 1988. The business was operated, for taxation purposes, as a partnership although I accept the husband's evidence that he substantially ran the business - the wife assisting with the books at night and when she was otherwise available. The wife during this period was employed at the Col Hunter Group, ceasing when the business was sold for a handsome profit - sufficient to enable the parties to repay all their debts (including loans taken out to buy two allotments of land on Russell Island) and to enjoy a holiday around the world for six months.
l)When the parties returned from their trip in November 1989 the wife took up employment as did the husband. Although the wife says she maintained steady employment, I accept the husband's evidence that he also maintained employment as a motor mechanic, although he changed employment more often than did the wife. I am not satisfied that their income from employment was substantially different.
m)The parties sold their Nerang property in October 1992 (after completing another world trip in 1990) and purchased a property at Sorrento for $240,000 – borrowing approximately $90,000. The parties attended to renovations on the property. There is a dispute as to who contributed more physical labour to these renovations. Again they generated a profit from this exercise, selling the property in May 1995 for $298,000 - and clearing $223,000. The parties then rented for some months.
n)The parties next purchased a property at 16 Bermuda Street, Broadbeach for $200,000 settling the purchase in August 1995. With the excess funds generated by the parties' employment they then completed further renovations and landscaping. The wife says the costs of renovations exceeded $33,000.
o)The parties purchased a further property at 138 Currumburra Road, Ashmore for $125,000 in June 1997 - borrowing $135,000 to cover the purchase price, legal expenses and some minor renovations. The property was purchased in the wife's name solely although the mortgage liability was a joint responsibility. The wife says (at paragraph 25) that "the intention when we purchased the property was to renovate it and sell it or rent it out and negative gear it or for me to live in it". The property was vacant from the date of purchase until approximately 6 December 1998.
p)Both parties agree that in about November 1998 the marriage was over – the wife saying at paragraph 26 that "we decided go to our separate ways". And the husband saying at paragraph 18 "In September 1998 the applicant decided to leave me".
q)At the time of trial the two properties at Currumburra Road and Bermuda Street were still owned and the intention of the parties at separation and the conduct thereafter is a fundamental issue in dispute.
Events post November 1998
The wife says that:
a)The parties decided she would live in the Currumburra Road property and the husband in the Bermuda Street property.
b)The parties had unsuccessfully tried to sell Bermuda Street.
c)“No conversations or discussions were entered into by Alby or myself regarding family law property settlements. We had no intention of doing a final property settlement at that point in time. I had hoped that we may have reconciled at some time in the future. That did not occur.”
She says that at the time of signing of contracts to dispose of her interests in the Bermuda Street property:
“It was not our intention to sever or determine our family law rights”
and no "terms of settlement" have been signed.
d)She has completed substantial renovations to the property "exceeding $40,000 in value".
e) The husband had not contributed financially to those renovations. It is not clear to me on the evidence if the renovations were performed before November 1998 or thereafter, although the wife says in her affidavit filed 19 November 2003, that in November 1997 she received a small inheritance of $9,318.74 " that was used to complete renovations to the Currumburra Road property". In an affidavit in reply (filed 26 November 2003) she seemed to me to have altered her evidence slightly by saying the total renovation costs were $45,000 and although she completed some of the renovations prior to taking occupation "the balance of renovations were completed subsequent to 1998".
The husband in his evidence says:
a)When the wife decided to "leave" they reached an agreement which he sets out at paragraph 20 of his affidavit filed 16 July 2003, namely that he would retain the Bermuda Street property and use it as security to borrow $130,000 to discharge the encumbrance over the Currumburra Road property. The figure of $130,000 was decided by adopting the value of Currumburra Road of $130,000; a value of Bermuda Street of $260,000. The result was that the value of the properties was equally divided.
b)The wife retained her Ford motor vehicle and the "vast majority of the furniture". This is denied by the wife;
c)He retained an old car, tools, AXA shares, an AXA endowment policy, and his 1998 Mercedes sedan;
d)The value of his endowment policy with National Mutual (now AXA) was $36,088 at that time. He suggests it was agreed that the husband would retain that policy which was offset by the wife retaining furniture insured for $61,800 together with other specific items with the value of $9,500. Again, this is specifically denied by the wife both as to fact and as to quantum;
e)It was the intention of the parties to settle all matters in this way on a final basis, and the contract drawn by the family solicitor, Martin Colwell, reflected this agreement. The contract signed by both parties for the only jointly owned property (remembering that the Currumburra Road property was registered in the wife's name only) provided as follows:
“Special Conditions
1.The parties hereto are the joint registered proprietors of the within property;
2.The transferor is also the sole proprietor of a residential dwelling house situated at 138 Currumburra Road Ashmore;
3.The parties hereto have separated and have agreed to a mutual disposition of property between themselves in terms of the following:
(a) the transferor is to retain exclusive and sole ownership and possession of the property as referred to in paragraph 2 hereof;
(b) in respect to the within property the vendor consents and agrees to transfer her one half interest in same to the purchaser for the sum of $130,000;
(c) the purchaser and the vendor agree to share the legal costs incurred in giving effect to this transfer. Government stamp duty and Westpac charges are payable by the purchaser;
(d) the purchaser shall be responsible for all local authority rates assessed or outstanding in respect to the within property.
4.The parties hereto consent and agree that all other matters as would constitute jointly owned property between them has previously been dealt with by mutual agreement. ”
f)He was surprised to receive a letter from the wife's solicitors in November 2002 claiming an interest in his assets. He regarded all financial matters as finalised in November 1998.
g)Has "spent a lot of money which I borrowed and earned improving the property at 16 Bermuda Street to its current state. I did this work with the assurance that I had finalised financial matters with my former wife." The wife denies he has made improvements since separation. She says improvements, with the benefit of an insurance claim for fire damage, were performed in 1999. The husband was able to produce evidence (which I accept) of landscaping conducted and paid for by him in September 2002 (see exhibit 10) exceeding $12,000.
Neither legal advocate for the parties sought to assert the real estate contract executed and performed by the parties was capable of extinguishing any claims the parties had under the Family Law Act 1975. To do so would be to offend the clear language of the Act. However, I am satisfied that an agreement in November 1998 as set out in the document signed by the parties, reflected their intentions at the time in respect of the Currumburra Road and Bermuda Street properties.
Even though the agreement is not binding on the parties (or the Court) it is of evidentiary significance in the same way as was identified by Lindenmayer J in P v P (1985) FLC 91-685 at 79,916, namely:
“In my view:
(a)it indicates the parties' intentions at the time;
(b)it is some indication what the parties thought was a fair settlement of their property entitlements at that time.”
I also accept in making this finding that the wife has been a fairly meticulous recorder of financial history (as set out in her affidavit) and it was a common practise to document transactions between them (see the boat contract as an example).
I am satisfied that even though the parties remained friendly and assisted each other after their final separation that the marital relationship did come to an end in November 1998. To some degree the wife now says that she was hopeful of a reconciliation. Such assertions are contrary to the statements contained in her self prepared application for divorce sworn on 4 June 2002 and filed on 15 August 2002. In that document she says she separated on 6 December 1998 (when it seems she moved into the Currumburra Road property) and that at the time she regarded the marriage as over. The history of the matter suggests that the wife obtained some legal advice from a practitioner with experience in family law matters at around the time the decree nisi was granted which caused:
a)A letter of demand dated 15 November 2002 to be sent to the husband; and
b)A caveat to be lodged by the wife on 19 November 2002 against the Bermuda Street property claiming an equitable interest in the property on the grounds of :-
"A constructive trust arising by operation of law from contributions by the caveator to the property with the oral agreement an intent of the (wife) and the (husband) that the (wife) would acquire an estate or interest in the land and by reason of unconscionable conduct land has remained in the registered proprietorship of the (husband)."
The claimed ground is either very poorly drawn (possibly using, I speculate, an inappropriate precedent) or asserts a situation which is at odds with the historical facts as they have been produced to this Court. The evidence reveals no demand was made by the wife between November 1998 and November 2002. I am satisfied she quite voluntarily transferred her interest in the Bermuda Street property for at least the benefit of having the Currumburra Road property unencumbered, in her sole name.
I am also satisfied that after the arrangements of November 1998 were put into effect, both parties individually maintained improved and preserved their own home. Either could have sold their property if they had wished to do so. Because of the reality that the parties were still communicating amicably, it is consistent with that continuing friendship that at times they did assist the other party with their own property. In my view however, on all the evidence, that assistance was minimal and was similar to support given by a friend and not directed to a continuing assertion of an interest or contribution to the other person's home from which they expected to be rewarded financially.
Principles
The general rule in dealing with matters of property, as established by a long line of authorities, is the Court should:
a)Identify the assets and liabilities and their value at the time of trial;
b)Determine the respective contributions of both financial, nonfinancial, direct and indirect nature during the course of the relationship to trial pursuant to section 79(4); and
c)Consider any relevant section 75(2) factors.
And as a final overarching principle, to be satisfied that the nature of the order to be made is just and equitable to the parties.
Pool of assets
The parties had, effectively, agreed on the identity and value of the pool of assets at the date of trial. Mr Cooper for the husband urged me to adopt the values of main assets (substantially the Currumburra Road home, Bermuda Street home and endowment policy) at the date of final separation, of November 1998. In support of this submission he relied upon the remarks and approach adopted by Connor J in Howes (1981) FLC 91-044 and Lindenmayer J in P v P (Supra).
Connor J said at 76,382 that:
“The wife argues that I should reward her one half of the values of the two properties less the amount that she has already received. Her rationale behind this argument is that in claims for property settlement the asset should be valued not at the date of separation but at the date of trial. I agree generally that in most cases this is the correct approach. However in those cases the claimant usually has not received any of his entitlement. Here of course the situation is very different. When the parties separated the matrimonial home was valued by a competent valuer and the wife received her entitlement. Further, she received her entitlement in the business. So far as the claim in respect of the matrimonial home is concerned I have no hesitation in finding that the wife has already received her entitlement therein and should not receive any other money in respect thereof.”
Lindenmayer J said at 79,916 that:
“In reliance upon the agreement the wife not only pay to the husband the $5,000 (of which he has since had the benefit) and took over all their liabilities in respect of the former matrimonial home and the motor vehicle but she also effected improvements to the former matrimonial home and believe that it was her sole property. In these circumstances I am of the opinion that it is appropriate to assess the parties' respective entitlements under section 79 of the Act based upon the values and various assets as at the date of separation rather than upon the values of those assets at the date of hearing. If upon the basis of assessment the husband is entitled to any further payment in exchange for the transfer of his interest in the former matrimonial home and motor vehicle I propose to make (indistinct) allowance to him for the delay in his receipt of that payment by the provision of reasonable interest thereon from the date of the agreement to the date of this judgment.”
Although, in many ways, the facts as I have found them to be relating to the intentions and conduct of the parties at separation and thereafter in this matter are quite similar to the facts as found by the trial Judges in Howes and P v P, I am of the view that over the last 20 years since those single Judge decisions, the Full Court has consistently identified that the preferred approach is to determine the assets and liabilities at the date of hearing. This is the first step.
I am not satisfied that in this case I should depart from the usual approach.
There was a dispute between the valuers appointed by the wife and the husband. However, after a conference of those valuers, they reached agreement, which is set out in the memorandum dated 26 November 2003 (exhibit 1). I deal with the other aspects of this memorandum later in these reasons. I find the pool of assets at trial to be as follows:
Assets:
16 Bermuda Street, Broadbeach $520,000
138 Currumburra Road, Ashmore $280,000
Two vacant allotments of land, Russell Island (Not known)
Wife's Ford Fairlane motor vehicle $3,000
Husband's Mercedes motor vehicle $2,000
Husband's Urvan motor vehicle $150
Husband's AXA shares $6,527
Husband's AXA endowment policy (net) $63,461
Husband's MLC policy $5,302
Wife's Colonial superannuation $15,082
Husband's MTAA superannuation $11,489
TOTAL: $907,011
Liabilities:
Mortgage on 16 Bermuda Street $120,876
NET POOL: $786,135
Some of the assertions and value of items of property were not supported by any admissible evidence. For these reasons, I choose not to include in the pool of assets any allowance for furniture or jewellery in the possession of the parties.
Similarly, the wife's bland assertion of the husband's tools of trade being worth in excess of $40,000 (including an alleged engine tuning machine) is not supported by the evidence. For example, if such a machine of that value exists, I would have expected the wife to provide evidence of when, and for how much, it was purchased. I regard this as an example of the wife's tendency to exaggerate.
Although the parties both concede the Russell Island land was acquired some years ago for $10,000 - no evidence of current value was produced by either party. The husband says the value is less than the current arrears of rates. I accept that to be the case, however I propose to make orders which preserve the parties' joint interest in those properties - just in case they may some day be worth selling (if not otherwise sold by the local authority for arrears of charges).
I have not incorporated any allowance for the substantial credit card liabilities which the parties say they now have outstanding. The wife alleging $23,000; the husband alleging $42,500. I infer in the absence of any compelling evidence to the contrary that these debts have accumulated post-separation to assist the parties to meet living expenses, some renovation expenses and probably legal expenses. Each party must bear sole responsibility, in those circumstances, for their own consumer debt.
Although it is clear from the evidence that the husband did access his MTAA superannuation, he says he used the funds to make improvements to the home at Bermuda Street. I could be accused of "double dipping" by including those funds when I have brought into account the value of the improved Bermuda Street property. Because those funds were available at the time of separation, I believe it is appropriate that they should be accounted for in the way that I have.
Contributions to separation November 1998
Although there are no authorities which mandate the division of assessment of contributions between pre and post separation periods, I am satisfied that the facts of this case make such an approach desirable. The wife was, in my view, more inclined to embellish her contributions and minimise the husband's contributions than was the husband. For example, her assessment of the parties' respective initial contributions at cohabitation (which I regard as the date of marriage) is flawed by:
a)a failure to acknowledge the value of improvements to the husband's property at Jenkins Street funded by the loan of $20,000, which she has included; and
b)
an assertion of funds in her bank account of $18,000 when the only document she has been able to produce show a balance at
7 April 1981 of $13,728.92 (exhibit 6).
I am satisfied, nonetheless, that the wife did come into the marriage with greater net assets than did the husband, although I cannot assess with certainty the position then now, some 20 years later. Certainly I do accept the wife introduced funds from her retirement/redundancy and also a small inheritance in 1997.
Both parties worked fairly consistently throughout the marriage and although the husband's record keeping was not as competent as the wife (and it seems the wife was not always aware of his income), during a relationship spanning 16 years to separation, it would be artificial and contrary to authority to seek (as the wife's urges me to do) to make some finite mathematical calculation of actual financial contributions.
I must say I find the non-financial contributions in the various roles as homekeeper (predominantly by the wife) and renovator and house maintainer (predominantly by the husband) as reasonably equal. I am conscious of cases such as Pierce, which guide trial adjudicators in properly weighing up all contributions by the parties. Having done so, I think an adjustment in favour of the wife is indicated by a factor of 2.5 per cent of the pool.
Contributions post separation
In my view the decisive contribution post separation was made by the husband in the conservation of the Bermuda Street property.
I acknowledge and accept that each party did expend money and effort to the improvement of their own property. The valuers agree that those improvements have caused an increase in value of 138 Currumburra Road by $35,000; and an increase in value of 16 Bermuda Street, Broadbeach Waters property of $20,000. This may not reflect what the parties actually spent or performed, but nonetheless that is the result.
Clearly, it can be seen that the pool of assets at trial increased by $132,500 through the wife's conservation and improvement of Currumburra post separation (including improvements). This is calculated as follows:
Value at November 2003 $280,000
Less value at November 1998 $147,500
$132,500
The pool of assets increased by approximately $290,000 through the husband's conservation and improvement of Bermuda Street post separation (including improvements). This is calculated as follows:
Value at November 2003 $520,000
Less value at November 1998 $240,000
$280,000
Plus reduction in loan $ 10,000
$290,000
Even though the major factor in the increase might be capital gains driven by a buoyant real estate market (and there is no evidence as to this in particularity) the husband chose to remain in the property with a sizeable debt of $130,000 which he solely met. He says, and the valuation evidence confirms, that the property at November 1998 was not worth $260,000. The unsuccessful attempts to sell, (attracting the highest offer of only $220,000) also corroborates the husband's view.
He took a risk that the property would improve in value. This is a special contribution by him and one which he is entitled to be rewarded for, in my view.
Of course, the wife was not prevented from doing likewise. She could have sold her property and used the proceeds to buy another property of higher value. She would have needed the assistance of a bank loan. She simply chose not to take that burden on and at her time of life, one could hardly blame her for taking a cautious approach.
I am also aware of the husband's evidence, which I accept, that he has paid about $76 per week towards the endowment policy. These contributions, together with investment and earnings on the account balance increased the value of the policy by nearly $30,000 since separation. Again, in the absence of any evidence to the contrary, it is fair to infer that the husband could have elected to stop payments and "cash in" the benefit. He chose not to do so and as a result is entitled to some credit, in a financial sense, for his effort.
The increase in the pool through Currumburra Street, Bermuda Street and the AXA endowment policy total $452,000 – or 57.5 per cent of the current pool. The husband's direct and indirect contributions post separation is calculated at $320,000 or 40 per cent of the nett pool.
I believe in the circumstances of this case, assessing these contributions, that it would be proper to make an adjustment in the husband's favour of 20 per cent of the pool. I have discounted what might otherwise be seen as the mathematically correct assessment for:
a)the offset in contributions made by the wife to the pool through the increase in Currumburra; and
b)the mere effect that the general market influences had on property values.
At trial therefore I assess that the pool of assets should be divided as to 67.5% to the husband and 32.5% to the wife, before consideration of the relevant section 75(2) factors.
Section 75(2) factors
Both parties, being now in their 60’s, are nearing the later stages of their active working life. Neither party produced any probative evidence of medical challenges. Although the wife, at trial, was still working as an office manager on a modest income of $655 per week (gross), the husband claims he is not working and is unemployable. The wife says he works for cash. No evidence to sustain this allegation was produced. This factor favours an adjustment to the husband.
A factor which, in my view, favours an adjustment to the wife is the effect of my order for property settlement, which shall place the husband in a much stronger financial position than the wife. He will also, on the evidence, be able to assess all his superannuation endowment policies in June this year, if not earlier. When I weigh up these factors, I would make a further adjustment in the wife's favour of 2.5 per cent of the pool.
Is the order just and equitable?
The effect of this analysis is that the net pool of assets of $786,135 should be divided as to 65 per cent to the husband and 35 per cent to the wife. The wife's 35 per cent of the pool is calculated to be $275,147. On this basis, to retain her home, car and superannuation, she would be required to pay the husband $23,000.
Such result is not sought by the husband in his case outline, in which he seeks, effectively, that each party retain the assets they currently have in their ownership or possession. I bear in mind the observations of the Full Court in decisions such as Phillips case. I would not think it fair for the wife to borrow $23,000 to pay to the husband to retain her home. I regard an order in terms of the husband's case outline at paragraphs 1 to 6 as a just and equitable result for the parties.
Purely for completeness, and as a form of cross-checking, if I had been persuaded to follow the approach adopted in P v P and Howes, then the assets at the time of separation would have been broadly as follows (excluding almost equal holdings in superannuation, furniture, jewellery and motor vehicles), namely:
Currumburra Road $147,500
Bermuda Street $240,000
Endowment policy $36,000
Total $423,500
Less loan of $130,000
Net $293,500
The wife's 52.5 per cent share thereof, at that time on contributions (and on the basis that as both were working no adjustment for section 75(2) factors would be appropriate) would amount to approximately $154,000 – or within the range of the value of her home at that time.
Costs
Both parties sought an order for costs. After the parties have considered their positions in terms of these reasons, I shall direct that any application for costs be filed and served by way of written submissions within 21 days. Any response by written submission is to be filed and served within 14 days thereafter. I shall make a decision on those written decisions in chambers.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Baumann FM
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