Whitlam and Whitlam

FAMILY COURT OF AUSTRALIA

WHITLAM & WHITLAM [2008] FamCA 606

FAMILY LAW – PROPERTY – alteration of property interests

Family Law Act 1975 (Cth)

Norbis v Norbis (1986) FLC 91-712
Lenehan & Lenehan (1987) FLC 91-814
Zyk & Zyk (1995) FLC 92-644
James and James (1978) FLC 90-487
Briginshaw v Briginshaw (1938) 60 CLR 336
Black and Kellner (1992) FLC 92-287
Weir and Weir (1993) FLC 92-338
Monte and Monte (1986) FLC 91-757
Chang and Sue (2002) FLC 93-117
Froth & Froth (2007) Fam CA 1608

APPLICANT: Mr Whitlam

RESPONDENT: Ms Whitlam

FILE NUMBER: CAF 628 of 2004

DATE DELIVERED: 30 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Canberra

JUDGMENT OF: Watts J

HEARING DATE: 28 - 29.8.2007
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Britztowski

SOLICITOR FOR THE APPLICANT: Stacks Forster

COUNSEL FOR THE RESPONDENT: Mr Nicholls

SOLICITOR FOR THE RESPONDENT: Commins Hendriks

Orders
1.Pursuant to s.79 of the Family Law Act an order be made in the terms of paragraphs 2 to 10 as set out below.
2.Within 7 days of the date of the orders the parties each provide written instructions to the National Australia Bank to release to the wife the monies held by the National Australia Bank in trust for the parties being the net proceeds of sale of the R properties together with any accumulated interest.
3.Within 60 days of the date of these orders the husband:-
3.1.pay to the wife $280,509.00;
3.2.pay all monies due to C Australia Pty trading as C Company (or such other entity as it might properly be known) in relation to the liability owing to that entity referable to the case combine harvester formerly owned by the parties and make available to the wife or her solicitors evidence from C Australia Pty Ltd confirming full payment of the said liability;
3.3.pay all monies due to the L Shire Council in relation to outstanding rates and any other monies owing referable to the O property and make available to the wife or her solicitors evidence from the Council confirming full payment of the said liability;
3.4.pay all monies currently assessed and owing to the Australian Taxation Office in relation to the liability owing jointly by the parties and make available to the wife or her solicitors evidence from the Australian Taxation Office confirming full payment of the said liability;
3.5.pay all monies due to A & B, accountants, in relation to the liability owing to those accountants by the parties in their joint names and make available to the wife or her solicitors evidence from A & B confirming full payment of the said liability;

4.In the event of the husband failing to pay the amount due to the wife pursuant to Order 3.1 by the stipulated date for any reason other than non compliance with any order by the wife then in addition to the amount stipulated in Order 3.1 the husband pay interest to the wife on the amount owing at the rate specified in the Family Law Rules from the due date of payment until the actual date of payment calculated on a daily basis.
5.Contemporaneously with the husband complying with Orders 2, 3 and 4, the wife transfer to the husband all interest she has in the rural property located at and known as O property constituted by Folio Identifiers …, … and … (“the [O] property”) subject to and conditional upon the husband:-
5.1.discharging, at the husband’s expense, all mortgages currently registered on the titles or any of the titles constituting the O property and making available to the wife or her solicitor a copy of the said Discharge of Mortgage;
5.2.removing all caveats, at the husband’s expense, currently registered on the titles or any of the titles constituting the O property.

6.Contemporaneously with the transfer referred to in Order 5, the wife transfer to the husband all interest she has in the jointly held IAG Limited shares, and any equipment and/or tools presently used or remaining in the farming business on the O property or otherwise in the husband’s possession or control.
7.The husband as soon as practicable:
7.1.pay all liabilities owing in relation to the partnership formerly conducted by the parties known as Whitlam partnership not otherwise specifically referred to in these orders and indemnify the wife in relation to all such liabilities;
7.2.provide all such instructions to A & B accountants and do all things otherwise required to finalise and lodge with the Australian Taxation Office such outstanding income tax returns and other documents as may be required on behalf of the partnership formerly conducted by the parties known as Whitlam partnership and that the husband bear all expenses associated with compliance with this order subject only to the wife signing such documents as requested by A & B accountants; and
7.3.pay all monies due to the Australian Taxation Office in relation to any income tax or other charges assessed in consequence of the lodging of income tax returns pursuant to Order 7.2 and make available to the wife or her solicitors evidence from the Australian Taxation Office confirming full payment of such liabilities and as between the husband and wife any unpaid monies due pursuant to Order 7.3 shall be a charge on the O Property.
7.4.do all things to terminate the said partnership known as Whitlam partnership including but not limited to deregistration of the ABN for that partnership and that the husband bear all expenses associated with compliance with this order and make available to the wife or her solicitors evidence of compliance with this order.

8.Unless otherwise specified in these orders and save for the purpose of enforcing monies due under these or any subsequent orders:
8.1.each party be solely entitled, to the exclusion of the other, to all other property, including choses-in-action, in the possession of such party as at the date of these orders;
8.2.each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
8.3.insurance policies remain the sole property of the owner named thereon;
8.4.unless otherwise specified in these orders each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
8.5.each party be solely liable for debts in that party’s name and indemnify the other party in relation thereto.

9.In the event the husband has failed to fully comply with Orders 2, 3 and 4 within three months from the date of these orders then the parties list the O property for sale by auction with such real estate agent to be agreed on between the parties and failing agreement to be nominated by the President for the time being of the Real Estate Institute of New South Wales or his/her nominee and in connection therewith the parties:
9.1.do all things required to cause the initial auction to take place at such time as directed by the appointed real estate agent;
9.2.accept and act upon the advice of the appointed real estate agent in respect to all aspects of the sale including but not limited to the reserve price unless the parties both agree in writing otherwise;
9.3.cause a further auction of the O property to be held every three months in the event the O property does not sell at the initial auction and to observe the provisions of Order 9.2 of this order in relation to all subsequent auctions;
9.4.instruct a solicitor to act on the sale being a solicitor as agreed between the parties and in the event of the parties being unable to reach agreement a solicitor as nominated by the President for the time being of the Law Society of New South Wales for his/her nominee.

10.Upon a sale of the O property being effected the parties cause the proceeds of sale to be disbursed in the following priorities:-
10.1.In the payment of the costs, commissions and expenses payable to the appointed real estate agent in connection with the sale;
10.2.In the payment of the costs and disbursements payable to the appointed solicitors in relation to the sale;
10.3.Discharge all mortgages currently registered on the titles or any of the titles constituting the O property;
10.4.In payment to the wife of the sum of $280,509.00 together with interest accumulated with the rate prescribed in the Family Law Rules after 60 days of the date of these orders OR 33 percent of the gross sale price of the matrimonial home; whichever amount is the greater;
10.5.In payment to K Whitlam of any amount necessary to discharge the unregistered mortgage that K Whitlam has in respect of the O property;
10.6.In payment of all monies required pursuant to Orders 3.2, 3.3, 3.4 and 3.5;
10.7.The balance to be held in trust by the wife’s solicitors pending compliance with Orders 7.2, 7.3 and 7.4 and that the wife’s solicitors be authorised to apply such monies in discharge or partial discharge of the husband’s obligations pursuant to those orders;
10.8.Upon compliance with Orders 7.2, 7.3 and 7.4 the monies or such part thereof as remains held by the wife’s solicitors pursuant to Order 10.7 to the husband.

11.In the event of non compliance by the husband or the wife with the signing of any documents required in compliance with these orders that the Registrar of the Family Court at Canberra be entitled to sign such documents in lieu of the husband pursuant to s.106A Family Law Act.
12.Each party has liberty to relist the proceedings for further implementation of orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: CAF 628 of 2004

MR WHITLAM
Applicant
And

MS WHITLAM
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.This case is about what alternation should be made to the property of the parties. The principal asset of the parties is a farm at O (“the O property”).
2.The significant issues at trial were:-
2.1.Whether or not $100,000, which the parties received by way of a reduction of the purchase price of the O property, provided by the husband’s father, was a gift or was in whole or part compensation provided to the husband for his work on the O property over a ten year period during the cohabitation at below award wages.
2.2.How an unregistered mortgage on the O property in favour of the husband’s father (which currently has an agreed outstanding amount of $170,000) should be treated.
2.3.How interest set out in the unregistered mortgage on the O property, in the approximately sum of $15,000, should be treated.
2.4.What monies the husband received post separation and how it is to be accounted for.
2.5.Whether or not the husband’s conduct during the marriage made contributions by the wife during the marriage significantly more arduous (described in the hearing as “the Kennon issue”).
2.6.Whether or not there should be any accounting for “waste” arising from the forced mortgagee sale of the two residential properties at R and the repossession and subsequent sale of the case harvester.
2.7.What adjustment should be made based on the contributions of the parties.

3.The parties agreed about the adjustment to be made for s.79(4)(d) to (g) Family Law Act (“FLA”)matters in the context of the parenting arrangements post separation.

SHORT HISTORY
4.The husband was born in August 1963 and is currently 44 years of age.
5.The wife was born in December 1965 and is currently 42 years of age.
6.The parties were married and commenced cohabitation on 11 October 1986.
7.There are three children of the marriage:
7.1.T born in June 1989 (currently 19 years of age);
7.2.C born in July 1991 (currently 17 years of age);
7.3.B born in January 1994 (currently 14 years of age).

8.The parties separated on 14 January 2003.

APPLICATIONS
Wife
9.The orders sought by the wife in final submissions are as follows:
1.That within 7 days of the date of the orders the parties each provide written instructions to the National Australia Bank to release to the wife the monies held by the National Australia Bank in trust for the parties being the net proceeds of sale of the [R] properties.
2.That within 60 days of the date of these orders the husband:-
(a)pay to the wife $500,000;
(b)pay all monies due to [C] Australia Pty trading as [C Company] (or such other entity as it might properly be known) in relation to the liability owing to that entity referable to the case combine harvester formerly owned by the parties and make available to the wife or her solicitors evidence from [C] Australia Pty Ltd confirming full payment of the said liability;
(c)pay all monies due to the [L] Shire Council in relation to outstanding rates and any other monies owing referable to [O property] and make available to the wife or her solicitors evidence from the Council confirming full payment of the said liability;
(d)pay all monies due to the Australian Taxation Office in relation to the liability owing jointly by the parties and make available to the wife or her solicitors evidence from the Australian Taxation office confirming full payment of the said liability;
(e)pay all monies due to [A & B], accountants of […] in relation to the liability owing to that entity by the parties in their joint names and make available to the wife or her solicitors evidence from [A & B] confirming full payment of the said liability;
(f)provide all such instructions to [A & B] and do all things otherwise required to finalise and lodge with the Australian Taxation office such outstanding income tax returns and other documents as may be required on behalf of the partnership formerly conducted by the parties known as [Whitlam partnership] and that the husband bear all expenses associated with compliance with this order subject only to the wife signing such documents as requested by [A & B];
(g)pay all monies due to the Australian Taxation Office in relation to any income tax or other charges assessed in consequence of the lodging of income tax returns pursuant to Order 2(f) and make available to the wife or her solicitors evidence from the Australian Taxation Office confirming full payment of such liabilities;
(h)upon compliance with Orders 2(f) and (g) do all things to terminate the said partnership known as [Whitlam partnership] including but not limited to deregistration of the ABN for that partnership and that the husband bear all expenses associated with compliance with this order and make available to the wife or her solicitors evidence of compliance with this order.

3.That in the event of the husband failing to pay the amount due to the wife pursuant to Order 2(a) by the stipulated date for any reason other than non compliance with any order by the wife then in addition to the amount stipulated in Order 2(a) the husband pay interest to the wife on the amount owing at the rate specified in Rule 17.03 of the Family law Rules from the due date of payment until the actual date of payment calculated on a daily basis.
4.That the wife transfer to the husband all interest she has in the rural property known as [O property] constituted by folio identifiers […], […] and […] subject to and conditional upon the husband:-
(a)complying with Orders 1, 2 and 3;
(b)discharging, at the husband’s expense, all mortgages currently registered on the titles or any of the titles constituting [O property] and making available to the wife or her solicitor a copy of the said Discharge of Mortgage;
(c)removing all caveats, at the husband’s expense, currently registered on the titles or any of the titles constituting [O property].

5.That pending the husband’s compliance with Orders 1-4 herein all monies paid or payable by the lessees of [O property] from the date of the last payment made by the said lessees until the date of compliance with order 1, 2 and 3 here in be apportioned equally between the parties and to give effect to this order the amount be calculated and added to the sum payable by the husband to the wife pursuant to order 2(a) and that the remaining provisions of these orders as might apply to Order 2(a) also apply mutatis mutandis to the additional amount payable pursuant to this order.
6.That the wife transfer to the husband all interest she has in the jointly held IAG Limited shares.
7.That the husband pay all liabilities owing in relation to the partnership formerly conducted by the parties known as [Whitlam partnership] not otherwise specifically referred to in these orders and indemnify the wife in relation to all such liabilities.
8.That unless otherwise specified in these orders and save for the purpose of enforcing monies due under these or any subsequent orders:
(a)each party be solely entitled, to the exclusion of the other, to all other property, including choses-in-action, in the possession of such party as at the date of these orders;
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)unless otherwise specified in these orders each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party be solely liable for debts in that party’s name and indemnify the other party in relation thereto.

9.That in the event any monies due by the husband to the wife pursuant to these orders remain outstanding three months from the date of these Orders then the parties list [O property] for sale by auction with such real estate agent as nominated by the wife and in connection therewith the parties:
(a)do all things required to cause the initial auction to take place at such time as directed by the appointed real estate agent;
(b)accept and act upon the advice of the appointed real estate agent in respect to all aspects of the sale including but not limited to the reserve price unless the parties both agree in writing otherwise;
(c)cause a further auction of [O property] to be held every two months in the event [O property] does not sell at the initial auction and to observe the provisions of subparagraph (b) of this order in relation to all subsequent auctions;
(d)instruct a solicitor to act on the sale being a solicitor as agreed between the parties and in the event of the parties being unable to reach agreement a solicitor as nominated by the President of the Law Society of New South Wales.

10.Upon a sale of [O property] being effected the parties cause the proceeds of sale to be disbursed in the following priorities:-
(a)firstly in the payment of the costs, commissions and expenses payable to the appointed real estate agent in connection with the sale;
(b)secondly in the payment of the costs and disbursements payable to the appointed solicitors in relation to the sale;
(c)thirdly in payment of all monies due to the wife pursuant to these orders;
(d)fourthly in payment of all monies required pursuant to Orders 2(b), 2(c), 2(d) and 2(e);
(e)fifthly the balance to be held in trust by the wife’s solicitors pending compliance with Orders 2(f), 2(g) and 2(h) and that the wife’s solicitors be authorised to apply such monies in discharge or partial discharge of the husband’s obligations pursuant to those orders;

(f)sixthly, upon compliance with Orders 2(f), 2(g) and 2(h) the monies or such part thereof as remains held by the wife’s solicitors pursuant to Order 10(e) to the husband.

11.That in the event of non compliance by the husband with the signing of any documents required in compliance with these orders that the Registrar of the Family Court at Canberra be entitled to sign such documents in lieu of the husband pursuant to Order 106A.
12.That in the event of default by either party in relation to any of these orders that each party be given liberty to relist the proceedings for further implementation of orders.

Husband
10.The husband sought the following orders at the final hearing:
1.That the orders sought by the wife’s Application be dismissed.
2.(a) That the wife do all acts and things and sign all documents as maybe required to transfer to the wife at the expense of the wife all of her right title and interest in the property situate and known as [O property] and being the whole of the land comprised in Folio Identifier […], […] and […] (hereinafter referred to as “[O property]”).
(b)That contemporaneously with the transfer referred to in the sub-paragraph above and in consideration of the transfer of her interest in [O property], the husband pay to the wife an amount of $180,000.
(c)That the husband on or before the transfer referred to in sub-paragraph (a) above do all acts and things to discharge any mortgage registered to any bank with respect to [O property] and indemnify the wife in respect of all liability of the parties pursuant to the mortgage to [K Whitlam] and all council, water and other rates, maintenance, or other levies, taxes or outgoings of or with respect to [O property] of whatsoever nature and kind.

3.That the wife transfer to the husband all of her right title and interest in any equipment and all tools presently used or remaining in the farming business on [O property] and the husband indemnify the wife in respect of all liability of the parties pursuant to any loan or mortgage or outgoings of or with respect to the said equipment and tools used or remaining on [O property] of whatsoever nature and kind.
4.The husband transfer to the wife all of his right title and interest in any motor vehicle registered in the name of the wife and in her possession.
5.The wife transfer to the husband all of her right title and interest in any motor vehicle registered in the name of the husband and in his possession.
6.That the parties mutually divide the balance of sale proceeds of the properties known as [R properties] held in the account styled in both names with the National Australia Bank.
7.The wife transfer to the husband all of her right title and interest in any residual farming equipment situate at [O property].
8.That unless otherwise specified in these orders each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind and in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements and the chattels and the real property are deemed to be in the possession of the wife.
9.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
10.That if either party neglects or otherwise fails to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders a Registrar, Deputy Registrar or other Officer of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
11.The wife pay the husband’s costs of these proceedings.

CREDIT
11.Whilst I deliver this judgment a considerable period of time after hearing and seeing the parties, my findings in relation to credit and demeanour are based on contemporaneous notes made at the time of the hearing.
12.Both parties were quite emotional at times when giving their evidence. The central issue where the parties gave conflicting evidence related to the events which the wife relies upon to make the claim that behaviour of the husband during part of the marriage made her contributions significantly more arduous.

Wife
13.I was impressed by the way the wife gave her oral evidence. The wife became distraught when details in respect of alleged domestic violence were being discussed. I formed the view that she was very genuine when she was giving that evidence. The wife’s version of the indecent assault that took place in 2000 and 2001 was given powerfully. I do not accept the husband’s explanation that the wife “tripped on sheets and fell out of bed”. The wife was very emotional when being questioned about her evidence relating to her Kennon claim. She turned away from counsel who was asking questions and looked at the bench. On one occasion she required time to compose herself.
14.The wife’s credit was not impugned by any significant inconsistencies in the evidence she gave in cross examination.

Husband
15.Counsel for the wife did not hold back on what he said the Court should find about the husband’s credibility. He charged the husband with being downright dishonest, lacking in insight, vindictive, volatile, controlling, demanding and full of rat cunning.
16.In relation to the submission that the husband was vindictive, volatile, lacking in insight, controlling, demanding and full of rat cunning, counsel for the husband pointed to the fact that the wife had consented to a final parenting order placing the three children of the marriage with the husband. T and C stayed with their father upon separation. B moved from her mother to her father in November 2004. What happened to the children’s residence after that is set out below. Whilst that is a reasonable point to make against the extreme allegations made against the husband, I have no information before me that would indicate why it might have been that this agreement was reached and placed little weight on these facts when I assess whether or not I accept the wife’s version of disputed issues rather than the husband’s. Counsel for the wife charged the husband with appreciating after the first day of the hearing that the court might have been affected by the emotional way in which the wife gave evidence on the first day. Counsel for the wife asserted that the husband appreciated the affect that the wife’s tears might have in respect of obtaining the sympathy of the court and the husband decided to try the same tactic.
17.It is my view that neither of the parties were faking the emotional reactions that they displayed in the witness box. Both parties were regularly moved to tears during the trial.
18.The wife was moved to tears when she remembered the more serious occasions of domestic violence that were perpetrated during the marriage.
19.The husband was moved to tears when confronted with the reality that he had managed the farm that had been in his family for four generations in a way which had led him no longer to be able to hold that property. The husband during his evidence, particularly on matters that touched on the reality of arrangements with his father and the possible outcome for himself (being the fifth generation of Whitlams and the only generation in five generations who had not been able to retain the farm), became highly emotional in the witness box and requiring the taking of an early adjournment.
20.The husband became quite emotional when giving his evidence. He refused to call his wife a liar, although he agreed with the proposition that she was a very good actress and when eventually pressed said that that she had not told the truth about what had happened in the house between them, particularly in relation to sexual matters.
21.The husband’s evidence about the incident that the wife said took place in late 2002 was inconsistent. The husband’s original explanation for glass in the bed was a lamp which smashed all over the bed as a result of him tripping on the lamp cord. In oral evidence, however, the husband conceded that the wife’s version of the breaking of a mirror door was accurate.
22.On page 3 of Ms N’s report the counsellor records that the husband attributed the problems of his marriage to his wife’s failure to do any farm paperwork, to there not being enough money for the wife’s “fancy lifestyle” and to their poor sexual relationship. The latter had driven the husband to punch holes in the hallway walls on occasion in frustration although he denied ever having hit his wife. The husband said that his wife would lead you to believe that he was a sex maniac whereas he viewed himself as a “normal man”.
23.The husband does not dispute that he punched holes in walls and doors during the marriage. This was usually as a result of not getting his way in terms of sexual requests to the wife. The husband was referred to paragraph 3.4 of Ms N’s report and accepted in cross examination the accuracy of the statements in that paragraph.
24.I find the husband has not been full and frank about what he says in relation to monies owing to him by Dr M and that there are monies from some invoices that have not been accounted for. I have not, however, found that the husband has on a systemic basis failed to provide a full and frank disclosure of financial matters.
25.It was not to the husband’s credit that he instructed his counsel to cross examine the wife and put to her that she had agreed to lend him the car on the various occasions when she had complained the husband had taken it. I accept the wife’s evidence that she had never agreed to the husband taking the motor vehicle and that the husband had taken the motor vehicle because he regarded it as matrimonial property.

Conclusion about Credit
26.Where the version of events by the husband and wife differ, unless I indicate otherwise, I prefer the version given by the wife.

FULL AND FRANK DISCLOSURE BY THE HUSBAND
27.The husband’s written evidence on financial matters is scanty to say the least. The affidavit that he has filed for the trial on 27 July 2007 is less than two pages. He refers to and incorporates an earlier affidavit that primarily deals with children’s issues in that affidavit and the evidence relevant to property issues is more than two pages long. It refers to and incorporates an earlier affidavit that primarily deals with children’s issues.
28.Counsel for the wife made submissions that I should treat this case as one where the husband had failed to make a full and frank disclosure and the principals in cases such as Black and Kellner (1992) FLC 92-287, Weir and Weir (1993) FLC 92-338, Monte (1986) FLC 91-757 and Chang and Sue (2002) FLC 93-117 should be applied.
29.His submission was that it had been left to the wife, as best she could, to present to the court a picture of the husband’s financial circumstances.
30.Counsel for the wife submitted that I should resist what he described as a “creative attempt” by senior counsel for the husband to use the documents provided by the wife in the case to explain away gaps in the husband’s disclosure of his financial position.
31.Counsel for the wife said that it was highly implausible that the husband would still be writing receipts in May 2005 when the harvester was repossessed in January 2004. I did not find the husband’s evidence in that regard inherently implausible. The husband’s evidence was that he normally did not write an invoice until somebody was in a position to make a payment for work done at a previous time. The exceptions to that was when he sought an advance for the purposes of paying wages to employees.
32.During final submissions counsel for the husband made a concession that based on the husband’s place there is superannuation that had been contributed of about $1007.10 in addition to the $5,534.50 that appeared on Exhibit 6.
33.The husband under cross examination gave evidence that he counter signed cheques to accounts in the names of his three children. Counsel for the husband abandoned a submission that that was by way of tax minimisation on the advice of his accountant. The husband’s evidence was that each year he tried to put into the children’s bank account an amount that his accountant would advise would not attract tax as unearned income of a minor. He said that he estimated that he put $6,000 - $7,000 into T’s account, $5,000 -$6,000 into C’s account and $3,000 into B’s account. In addition, T made money working three nights a week and C was working 25 hours a week. The husband can be criticised for not detailing to the court that he expended money in this way. There is nothing in his financial circumstances that would give any hint that this was a manner in which he was supporting the children. In his financial statement filed 22 February 2007 for some unknown reason he completes Part N of that document (notwithstanding there is no application before me for maintenance, child support or financial enforcement). Having completed his own column This lack of detail is consistent with the documentation he has otherwise prepared for this hearing.
34.The husband had failed to disclose the existence of an amount of $5,534 in superannuation in either of the financial statements he swore and relied upon. It was clear that that was an omission. The husband however through his solicitor did provide a copy of the document which came into evidence as Exhibit 6. The fact that the husband did not try to hide that document leads me to conclude that the omission in the financial statements in relation to superannuation is an oversight rather than dishonesty. I accept the husband actually had no recollection that he had any interest in the superannuation fund. The document arrived at his home at W. He does not remember reading it or seeing it. However, it somehow got into his solicitors’ possession. I have no evidence before me as to when it was that the husband worked and for whom he worked in order to accumulate that superannuation. The statement itself indicates that it is a member of the Australian Primary Superannuation Fund from October 1989. That was at a time when the husband was struggling on his father’s farm. There is no evidence as to who paid the superannuation on his behalf. I consider this a matter of oversight rather than dishonesty.
35.Counsel for the wife also submits that the husband failed to properly complete Section M in the financial statement. That section requires a party to set out property falling within rule 13.04(1)(g) Family Law Rules being property disposed of by a party or on behalf of a party in the 12 months before separation and since separation. There were clearly disposal of assets of the husband that fell within that category and they were not set out in his financial statement. I have not however reached the conclusion that that was a deliberate attempt to hide the sale of assets. Whilst a truck and crops were disposed of to Mr and Mrs H, that lack of disclosure is consistent with the general view I have taken about the husband’s lack of capacity to properly manage his financial affairs and to properly keep records. The husband agreed when his attention was drawn to statement 85 of Exhibit 4; that statement contains the entry “22 September 2006 – [H] family pastoral $5,000”. The husband in his oral evidence could not remember why the H family had made that payment to him at that time. Again, this lack of memory is symptomatic of the husband’s overall control of his financial affairs and is consistent with the sloppy and tardy way that he has provided instructions to his lawyers for the preparation of his case. However, I do not believe, having seen the husband in the witness box, that he was deliberately setting out to mislead the Court about financial matters.
36.I accept the husband did what he could to reply to the schedules prepared by the wife which were served on the husband’s legal representatives on the Friday before the commencement of the hearing.
37.Counsel for the wife submitted that I should draw inferences from the fact that the husband sought orders which provided him with an opportunity of attempting to retain the farm. The inference that is invited is that if the husband can retain the farm then he must have financial resources that are undisclosed to the court. That is not the only inference that could be drawn. The more proper inference is the one available on the existing evidence, namely that he would hope that his father would rescue him.
38.Counsel for the wife submits that the husband must have access to assets and resources which he has not disclosed because of:-
38.1.Unlikely and unsatisfactory evidence relating to his arrangements with the H Family about O property.
38.2.Unexplained income through his own tendered documents.
38.3.Unexplained dealings with his subpoenaed banking accounts as tendered.
38.4.Counter signing cheques forwarded to him by third parties for which he provides no satisfactory explanation.

39.I find that none of those matters would lead me to the conclusion that the husband has assets or resources which have not been disclosed. Whilst I deal with some of those issues below when I discuss item 10 on the balance sheet, I find that none of those matter.
40.Counsel for the wife correctly points out that there are 18 months worth of bank statements that have not been put into evidence. These statements are missing from account 1324 (see Exhibit 4). They are for the period from July 2005 to January 2007 (6 quarterly statements =18 months). Account 1324 is the husband’s personal account (it is not the normal account into which most of the husband’s trading monies went but none the less the wife claims that she at no stage was given access to those statements (and that was not put in issue by counsel for the husband). This leaves a hole in the financial information from the husband post separation, but given the other findings I have made however it is not of such significant concern that would lead me to making adverse findings based on lack of full and frank disclosure by the husband.
41.I do not find, as I have been invited to by counsel for the wife, that the husband set out to deliberately deceive the court or that his evidence is completely unreliable in relation to financial matters.
42.There is certainly significant problems with the husband’s evidence. On balance, however, I am of the view that those problems arise out of his inability to properly manage his financial affairs. This inability is evidenced by the fact that he had to leave the farm in 2001 and that there has been clearance sales of farming equipment after that time. This inability is also connected with the husband’s impaired literacy. I do, however, find that there are significant problems in relation to the husband’s evidence in respect of his conduct during the marriage which is the subject of further discussion below.

Rental income from O property and the Husband’s financial relationship with the H Family

43.The husband’s evidence in relation to the lease of O property to the H Family is not consistent. His January 2006 affidavit says that the lease expired in February 2005. His trial affidavit said that it expired in February 2004. In his oral evidence the husband said that it was a three year lease with a two year option and it commenced in 2001. The trial affidavit consequently gives the correct date for the expiration of the head lease but I infer that the H Family exercised an option which extended the lease to 2006. That is consistent with the evidence of payment of rent by the H Family (at last check being March 2006).
44.The wife agreed in oral evidence that she had refused to sign a new lease for the H Family.
45.They have remained upon the property.
46.Counsel for the wife submitted that the only conclusion that could be drawn was that they remain on the property under the conditions of the expired lease.
47.The husband’s evidence is that the H Family continue to work the property and are involved in an extreme maintenance program in respect of the property. Counsel for the wife submits that it is the term of the expired lease which is annexed to the husband’s trial affidavit.
48.The lessee had various obligations under the lease including an obligation to maintain and restore fences, to maintain drains leading to ground water tank and to take care of the trees and scrubs.
49.The husband’s evidence as to what the H Family are actually doing however would extend beyond the requirements of the lease (had the lease been currently in force).
50.On my reading of the lease paragraph 19 is the option clause. It says that an option can be exercised for a further term as set out in Schedule 8. Schedule 8 does not actually provide any term (it is the husband’s evidence that in 2004 a further extension of two years to the lease was negotiated - there is no documentation that would indicate that that is so).
51.The husband has not fully disclosed the relationship he has with the H Family from a financial point of view. We heard for the first time in cross examination some of the arrangements that he had with the H Family which included them accessing grain that had been buried for the purposes of that grain being available to stock during drought. It is clear on the paperwork that rental cheques stopped from the H Family in 2006. As I have already said, the husband’s oral evidence was that no fresh lease was entered into by the H Family and the wife in her cross examination confirmed that she had been asked to sign a fresh lease and had refused to do so.
52.I conclude there is no current lease with the H Family. The husband simply says that it is more beneficial to have the H Family on the property than not on the property. The H Family are obviously obtaining some benefit and advantage from being there. The husband says there is a mutual advantage in that they are maintaining and improving the property whilst they are there. Whilst the husband has not fully disclosed every detail of his financial relationship with the H Family, I am not satisfied that he has deliberately set out a course of conduct to hide his financial relationships with the H Family.

CHRONOLOGY
53.The husband was born in August 1963 and is currently 44 years of age.
54.The wife was born in December 1965 and is currently 42 years of age.
55.In 1981 the husband and wife commenced a relationship however they did not live together prior to the marriage.
56.In October 1986 the parties were married and commenced cohabitation.
57.During 1986 the husband worked for his father on the family farm at O property of some 2846 acres (1,152 ha) and received wages but not always regularly or at full market rates.
58.In 1987 the wife obtained full time employment with the local government.
59.In April 1987 the husband took over management of his parent’s family farm, O property.
60.In June 1989 the wife ceased employment.
61.In June 1989 the first child of the marriage, T, was born.
62.Between 1990 and 1992 the parties and T left the O property to live in W for about two years, where the husband worked as a contractor and truck driver. He also maintained a contract shearing business. The wife says, and I accept, there was conflict between the husband and his father at this time.
63.In July 1991 the second child of the marriage, C, was born.
64.In July 1992, with the assistance of the Commonwealth Government Scheme aimed at helping young farmers stay on the land, the family moved back to O property. The husband resumed running O property. The family moved back into the house on O property. At that time the husband also took over the management of his brother’s property.
65.In January 1994 the third child of the marriage, B, was born.
66.In the late 1990s the wife alleged the husband’s behaviour towards her began to deteriorate. I deal with this issue in more detail below.
67.At the end of October 1997, contracts were signed for the parties to purchase O property from the husband’s father for the amount of $450,000. Vendor finance accounted for $200,000 secured by mortgage to the husband’s father. The husband’s father gifted $100,000. The parties borrowed $150,000 from the National Australia Bank. The husband ceased working for his father for wages.
68.The husband’s father also allowed the parties to use some of his plant. The parties appear to have owned a truck at this time. The sale included a number of sheep less the wool clip on them.
69.Between 1997 to 2001 the wife and children left the husband on a number of occasions following repeated domestic violence incidents but each time they returned home.
70.In October 1999 the parties bought a Case Harvester for $250,000 fully financed by C Australia Ltd. The agreement (the “C Company agreement”) required a payment of $51,280 in January 2003 and a final payment of $100,060 in January 2004.
71.On 16 March 2001 the parties left O property. The property was leased to Mr & Mrs H for three years. The wife alleged that the rent was $15 per acre or $42,675 per annum payable at six monthly intervals. The schedule to the draft lease shows rent of $36,000 per annum. The parties moved back to W and rented a house.
72.In March 2001 the wife returned to part time employment. The husband obtained contractual employment.
73.In September 2001 a clearance sale of equipment and items on the O property took place. Some items were not sold.
74.In March 2002 the husband commenced employment on a farm belonging to Dr M.
75.In 2002 the parties bought two additional properties at R ($175,000) and ($45,000). The parties had $10,000 from the clearance sale and borrowed the rest secured over the R properties as well as over O propert.
76.In January 2003 the C Company agreement was refinanced for $144,843. This required $10,816 by 21 February 2003 and three payments of $51,798 in January of 2004, 2005 and 2006.
77.On 14 January 2003 the parties separated. The wife and B moved in with the wife’s father. The husband continued to live in the former matrimonial home in R with T and C.
78.The debts at separation were:
as to original O property purchase $150,000
as to the R properties $150,000
79.In 2004 C Company repossessed the harvester. It was not to be until March 2007 that it was sold and there was then a shortfall of about $17,619.
80.The lease of O property to Mr & Mrs H expired. The husband says they have since sharecropped the property on the basis that the H Family maintained the property.
81.In November 2004 B commenced living with the husband.
82.On 28 November 2004 an incident occurred between the husband and wife. The husband was charged with assault and the police instigated an interim AVO. The husband instigated a reciprocal AVO against the wife.
83.On 16 December 2004 the Local Court made reciprocal interim apprehended violence orders and the applications were listed for final hearing.
84.On 7 March 2005 interim orders were made for C and B to live with the wife.
85.In March 2005 the husband relocated to F with T.
86.In May 2005 C did not return to the wife’s care after holiday contact with the husband.
87.On 31 May 2005 final parent orders were made that C live with the father and B to live with the wife.
88.On 29 August 2005 the National Australia Bank issued default notices and in February 2006 the National Australia Bank took possession of both R properties following prolonged default in loan repayments.
89.On 3 April 2006 interim orders were made for C and B to live with the husband and B went to live with her father in F.
90.On 28 April 2006 settlement of the mortgagee sale of the first R property took place for $95,000. The tenant moved out of this property.
91.On 28 July 2006 settlement of the mortgagee sale of the second R property took place for an amount of $275,000.
92.In July 2006 following the mortgagee’s sale by the National Australia Bank, there was a surplus of $15,936.10 following the settlement of the R property sales and after payment of all secured loans and related expenses. The amount of $4,125 was later withdrawn by agreement to pay a valuer and the balance of $11,811 remains with the bank.
93.In November 2006 the wife and Mr Y commenced a defacto relationshp.
94.In January 2007 final orders were made that C and B live with the father.
95.On 26 February 2007 judgment was entered in favour of A & B, accountants, for $15,584 against the husband and wife. There was a separate claim for work done for the wife and that was for about $760.
96.In March 2007 the harvester was sold. The shortfall was approximately $17,619 and this amount remains owing.
97.On 9 May 2007 the wife and Mr Y entered into a contract to purchase a shop in T. The purchase price was $42,560. Fifty percent was payable immediately with the remaining fifty percent payable in twelve months. The wife and Mr Y moved to T into rented premises.

THE APPROACH TAKEN IN THESE REASONS FOR JUDGMENT
98.In this matter my task is to:
98.1.Identify and value the property, assets, financial resources and liabilities of the parties;
98.2.Identify relevant contributions and assess them;
98.3.Consider relevant matters referred to in s.79(4)(d) – (g) FLA;
98.4.Ensure my order adjusting the property assets and liabilities of the parties is just and equitable.

GLOBAL OR ASSET BY ASSET APPROACH
99.I have, in endeavouring to arrive at a just and equitable division of their property, formed the view it is appropriate to deal with their assets on a global basis (see Norbis v Norbis (1986) FLC 91-712; Lenehan & Lenehan (1987) FLC 91-814; Zyk & Zyk (1995) FLC 92-644).

BALANCE SHEET
100.There has been substantial agreement in relation to the values to be attributed to those assets and liabilities contained in the pool of assets, which are set out in the table below. “Determined” in the agreed/determined column in that table indicates items for which no value has been agreed. A determination has been made in relation to contentious items for the reasons set out after the table.

Assets
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	J	O property	$850,000	$850,000	Agreed	$850,000
2	J	proceeds of sale of R properties	$11,811	$11,811	Agreed	$11,811
3	J	IAG (NRMA) shares	$1,400	$1,400	Agreed	$1,400
4	W	Trade-in for Falcon Forte	$5,500	$5,500	Agreed	$5,500
5	W	Hyundai motor vehicle	$0	$0	Agreed	$0
6	H	1995 Hyundai Lantra	$1,000	$1,000	Agreed	$1,000
7	H	Sundry remaining plant	$17,000	$17,000	Agreed	$17,000
8	H	Hallett speed boat	$2,500	$2,500	Agreed	$2,500
9	H	Furniture and Chattels	$3,500	$3,500	Agreed	$3,500
10	H	Husband's post separation funds	$0	$392,000	Determined	$64,847
11	H	Add back of legal fees	$0	Agreed	$0
12	W	Share in shop at T	$15,360	$15,360	Agreed	$15,360
13	W	Furniture and Chattels	$2,000	$2,000	Agreed	$2,000
14	W	Superannuation	$5,223	$5,223	Agreed	$5,223
15	W	Add back of legal fees	$5,700	$5,700	Agreed	$5,700
16	H	Superannuation	$6,541	nk	Determined	$6,541
Total assets			$992,382
Liabilities
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
17	W	Debt to wife's mother and father re Hyundai	$0	$0	Agreed	$0
18	J	C Company	$17,619	$17,619	Agreed	$17,619
19	J	Rates on O property	$25,930	$25,930	Agreed	$25,930
20	J	Partnership tax	$50,027	$50,027	Agreed	$50,027
21	H	Personal tax	$21,096	$0	Determined	$0
22	J	Partnership debt to A & B accountants	$15,787	$15,787	Agreed	$15,787
23	H	Debt to accountant, A & B	$6,680	$6,680	Agreed	$6,680
24	H	Citibank credit card	$9,500	$0	Determined	$0
25	H	Loan due to husband's father	$170,000	$0	Determined	$170,000
26	W	Debt for shop	$15,000	$15,000	Agreed	$15,000
Total liabilities			$301,043
Total net assets			$691,339

Item 10 – Post Separation Funds available to the Husband
101.Counsel for the wife argued that the husband had available to him after separation, funds that have not been properly accounted for and that should be added back against him. The “add backs” come from analysing two different sets of records. Counsel for the wife has done an analysis of the husband’s bank accounts and argues that $300,000 (although there was a reduction in that claim to a “minimum” amount of $257,000 when quoting final submissions). The second amount which counsel for the wife claims should be added back is in the sum of $92,000 and arises out of amounts on invoices rendered by the husband which counsel for the wife claims are not reflected as deposits in the trading bank accounts kept by the husband.
102.Exhibit 2 analyses monies paid by the husband to C Company post separation. This analysis indicates payments totalling $62,615.24.
103.Exhibit 3 analyses monies paid by the husband to NAB on three loan accounts (account numbers 4638; 8653 and 6140). Those post separation payments by the husband total the sum of $73,667.50.
104.The question posed by counsel for the wife at the commencement of the hearing is that if one accepts that the husband received $556,000 and is given credit for $62,000 and $73,000 in payments, then there is still $420,000 to explain. Counsel for the wife worked on the basis that $120,000 would reasonably be attributed to the husband’s living expenses over that period leaving a balance of $300,000 to explain.
(a)Challenge based on bank statements
105.Counsel for the wife sought to add back $300,000 although, as I have said, that amount was reduced to the sum of $257,000 in final submissions. The original argument for this “add back” was based on an analysis by the wife of monies received by the husband between January 2003 and August 2007 into accounts of the husband numbered 5341, 1324 and 7456. The total of income into those accounts during that period was $556,415. Exhibit 4 was provided to the husband on the Friday before the commencement of the hearing.
106.The mathematics in Exhibit G were not the subject of any challenge but by examination of the calculations indicate that there are some mathematical errors. There is, however, no need to explore that matter as there is a more fundamental problem in the argument by counsel for the wife.
107.A perusal of the accounts that counsel for the wife has analysed shows that at the end of each month, there was no significant balance in the business accounts; that is, the income that was being received was being matched by monies that were being expended. Whilst the wife has deducted payments to the National Australia Bank and C Company, there is no accounting for all the other smaller payments that have been made from the business account.
108.Counsel for the husband made the point that the husband was not attacked in cross examination in relation to any particular expenditure that appears on the bank statements contained in Exhibit 4. There was no attempt by counsel for the wife to carry out any detailed enquiry about any particular expenditure in these accounts.
109.The accounts are depleted from time to time by bank fees. Counsel for the husband submitted that these should not be counted as “waste” against the husband because I should conclude that he was doing the best that he could and he simply was not able to meet or anticipate periodic payment withdrawals of substantial amounts in relation to the major debts.
110.However, counsel for the wife says that it is not up to the wife to make a full and frank disclosure of the husband’s financial position, but by producing the bank statements the husband has disclosed all the payments made (dates and amounts). He was not challenged as to the purpose of those payments.
111.Counsel for the husband relies upon a second aid memoire (Exhibit J). In that exhibit counsel for the husband attempts to analyse financial statements in tax returns lodged for the 2002, 2003 and 2004 tax years. The husband has yet to do tax returns for the 2005 and the 2006 financial years. The analysis in aid memoire J leads to a conclusion that expenses as a proportion of gross income were about 50 percent. Counsel for the husband concedes that the analysis is a reasonably rough one given that it is not possible for him to break down what portion of payments to the NAB, Esanda and C Company represented payments of interest (which in the case of NAB and C Company have already been taken into account in Exhibits 2 and 3). Counsel for the husband invites me to peruse the detail of Exhibit 4. As he points out, the cheques drawn are usually for relatively small sums (less than $1,000). There are some larger payments; for example, a payment of $8,252 which is explicable (see Exhibit E) as a payment in relation to fuel. There are regular periodic debits in relation to NAB, Esanda and C Company (which as I have already mentioned have been taken into account). Other income coming into these accounts from 2004 are family tax benefits and the husband’s pension payments.
112.I accept that the husband finds it difficult to read and write. I accept that his financial management is not his strong suit. He impressed me in the witness box as being genuine when he told me that he was mortified by the fact that it was his inability to manage his financial affairs that had led him to be the fifth generation Whitlam who at this point had lost the farm.
113.I am not satisfied that the husband has pilfered funds from monies withdrawn from the business accounts.
(b)“Add Backs” sought by the Wife based on Invoices
114.The husband, on the first day of the hearing, provided invoices for contracting carried out by him and other income received by him from February 2004 through to May 2005 with three other invoices, two of which are undated and one which is dated June 2007.

115.Counsel for the wife raised as an issue the fact that a number of the amounts referred to in the invoices in exhibit G do not appear as deposits in the bank statements (Exhibit 4).
116.During submissions, counsel for the husband provided an aide memoire (exhibit I) in which he carried out an analysis of Exhibit 4 and Exhibit G. Exhibit I is an analysis by counsel for the husband which attempts to explain the discrepancy.
117.Counsel for the husband starts by excluding invoice 305 ($1750.05) and invoice 313 ($44,847). The first is excluded on the basis that this invoice had written upon it the words “unpaid”. The husband gave evidence about the circumstances in which that invoice was unpaid and I accept the evidence that Wyalong Grain and Fertiliser went into liquidation. In relation to invoice 14 the husband gave evidence that P E went into liquidation.
(c)Monies owing to Dr M
118.Invoice 313 relates to an invoice for work done for a Dr M. This invoice is dated 25 January 2005. The husband’s evidence is that Dr M has disputed this account and has not paid it. The husband gave evidence that letters had been written between his solicitors and Dr M’s solicitors. The husband says that he does not expect to collect the account. The account is for the sum of $44,847. In the context of this case that is not an insubstantial amount. The husband’s evidence in relation to this debt is quite poor. He has not referred to it in any evidence prior to the commencement of this case. There has been a less than full explanation as to the circumstances in which Dr M disputes the whole of this account. On the face of invoice 471313 it appears that the husband stripped 295 acres of canola and 2,955 acres of another crop. This work was done prior to January 2004 when the case harvester was repossessed. It is unclear from the evidence as to why the husband waited until January 2005 to render an account to Dr M for such a substantial amount of work done in 2003. The husband gave a general explanation in relation to some of the accounts by saying that farmers were impecunious and had to wait for the sale of their crop before a payment could be made. It is unclear as to whether or not Dr M fell within that category of clientele.
119.The husband’s only explanation as to why this debt cannot be collected is that he does not have the financial resources to pursue the legal proceedings to recover the debt from the doctor. He otherwise gave no explanation as to what the doctor’s defence might be to his claim. The evidence in relation to Dr M is inadequate. I intend to add back against the husband a debt owed by Dr M.
(d)Invoice 303
120.The analysis submitted by counsel for the husband (relying upon Exhibit I) asks me to accept that invoice 308 for the sum of $17,498.80 which is dated 3 November 2004 was paid by two payments made by the H family (the tenants of O property); one which was dated 2 November 2004 and the other which was dated 3 October 2003. Two deposits on those days add exactly to the amount of the invoice.
121.The husband’s general explanation as to a disconnect between when the work was done and when invoices were raised was that in relation to a number of the invoices, they were not raised until people were ready to pay him money. In relation to invoice 471308 specifically the husband’s evidence seems to be:-
He carried out work in about October 2003. Monies were paid at that time (about $11,000 by the [H] family) with the balance of $6,498.90 remaining outstanding. The [H Family] paid that amount in November 2004 and it was at that point that he raised an invoice. It is an agreed fact that the husband did not have the Case harvester in November 2004 and therefore the invoice which on its face seems to relate to work done in November 2004 could not be for work done in November 2004 for stripping.

122.On balance I accept submissions by the husband that the amount in invoice 308 is explained by the two deposits into two different accounts on 2 November 2004 and 3 October 2003.
(e)Invoice 311 and 312
123.Counsel for the wife points out that no explanation was offered by the husband as to why invoice 312 is missing.
124.In relation to unexplained deposits, the calculation carried out by counsel for the husband set out in Exhibit I calculates that there is a $30,000 discrepancy between the invoices and the amounts that appear in bank accounts. He points to an entry in Exhibit 4 for $10,000 on 31 December 2004. Whilst there is not an exact collation with a invoice 311 on 27 December 2004 for $12,827, he invites the court to assume that the $10,000 deposit was part of that payment in relation to the invoice for $12,827. Given that there is no other invoice to which that deposit would relate then that seems to be a reasonable submission. Consequently (putting aside the issue of Dr M’s debt) the discrepancy in the invoices between Exhibit I and what has been deposited into the accounts contained in exhibit 4 is in the approximate sum of $20,000. Counsel for the husband submits that that is explained by the husband’s evidence in relation to him endorsing cheques to third parties including the H Family children and other unspecified contractors. I do not consider this an adequate explanation. An amount of $20,000 should be added back against the husband.
125.The amount therefore to be added back in respect of item 10 will be in the sum of $64,847 ($44,847 + $20,000).

Item 21
126.The husband asserted that he had personal tax owing of $21,096. The wife was prepared to have that amount added back if the court accepted the wife’s submissions in relation to the add back of what the wife claimed was undisclosed and unaccounted for income. Given that the court has not substantially accepted the wife’s submission in relation to the add back of the asset against the husband, then the wife’s position would be that the tax should not be added back. I accept the wife’s position that the tax should not be added back.

Item 24
127.There was no indication as to why it should be that the husband’s Citibank credit card should be added back on to the balance sheet as a liability and in the absence of any acceptable explanation I do not do so.

Item 25: the $170,000 debt to the husband’s father
128.When the parties purchased O property in October 1997 the husband’s father lent, by way of vendor finance, the sum of $200,000. (As will be discussed below, the husband’s father also sold the property for $100,000 less than its real value at the time).
129.There has been a partial repayment of the loan of $200,000. The reduction of $30,000 in the loan has come about by the husband’s father taking possession of three pieces of plant which were not sold by the husband at the clearance sale.
130.Whilst Counsel for the husband in his case outline queries whether or not those items were worth $30,000, it seemed clear in the evidence of the husband’s father that the husband’s father accepted that figure as an appropriate deduction from the monies owed to him.
131.The husband in his case outline asserts that there is $170,000 still owing to his father. His father in his oral evidence referred to the schedule to the mortgage which showed that an amount (once interest was taken into account) of $215,000 was owing. No interest has ever been paid on the borrowing. The husband’s father conceded though that his accountant (and also the husband’s accountant) had sworn an affidavit in the proceedings which indicated that on the books the current loan was $170,000. As between the parties in these proceedings, that is the figure that the parties have agreed is the amount owing.
132.The amount of $170,000 is secured by an unregistered mortgage. The copy that was tendered in evidence was also unstamped. Senior Counsel for the husband provided an undertaking to pay the stamp duty on this document. I accepted that undertaking and on that basis the mortgage was admitted into evidence.
133.There is also evidence that the husband’s father lodged a caveat on the O property in support of his unregistered mortgage. O property is not able to be sold without appropriate arrangements being made with the husband’s father in relation to the unregistered mortgage.
134.Counsel for the wife invites me to find that the amount outstanding between the father and son is not a loan and it should not be added to the balance sheet because I should find that it is unlikely that the husband’s father would require repayment from his son. Having heard from the husband’s father, I do not believe that I can reach that conclusion. The husband’s father has an unregistered mortgage and I accept his evidence that he will require the debt to be honoured.
135.There has been a history of some problems between the husband and his father. The husband had asked his father to come to be cross examined on his affidavit and to support him in the case. Prior to that time the two of them had not talked to one another for about a twelve month period. There had been a previous occasion where there had been a disagreement between the father and son which had led to the husband’s leaving the farm at O. The husband described his father as a hard man, although he conceded that his father had been generous to him in the past.
136.The husband’s father gave evidence that at the age of 70 he was now semi retired, although he spends half his time working as a contractor.
137.Counsel for the husband submits that the debt to the father is repayable and is not something that can simply be ignored in the balance sheet. I accept that that is so but I find that the appropriate sum to add back to the balance sheet is an amount of $170,000.

CONTRIBUTIONS
Husband’s Position
138.The husband argues that an adjustment should be made in his favour, on an overall basis of 65 percent based on contributions.

Wife’s Position
139.The wife makes submissions in relation to the assessment of contributions in the alternative.
140.The wife submits that in the event that the court finds that the entirety of the $300,000 advanced by the husband’s father in 1997 is to be regarded as a gift or alternatively to be regarded as unlikely to be repaid, contributions overall should be assessed at 50 percent to the wife and 50 percent to the husband for the following reasons:-
140.1.an allowance to the husband of a 15 percent adjustment for the $300,000 advanced in 1997;
140.2.reduce that adjustment by five percent by reason of the husband’s wastage of resources in the context of his post separation failure to repay NAB loans and C Company;
140.3.allowing the wife an adjustment of ten percent by reasons as a result of her “Kennon” claim arising from the husband’s domestic violence against her from 1997 onwards.

141.In the alternative the wife contends that in the event that the Court finds that the $100,000 of the $300,000 advanced by the husband’s father in 1997 was a gift and that the $200,000 balance of the advance is to be regarded as a loan payable by the husband to his father at some future point in time upon terms that will ultimately be negotiated between the husband and his father, contributions overall should be assessed as to 60 percent to the wife and 40 percent to the husband for the following reasons:-
141.1.allowing the husband a five percent adjustment for the $100,000 gift in 1997;
141.2.reducing that by five percent by reasons of the husband’s wastage of resources in the context of his failure to repay the NAB loan and the C Company loan;
141.3.allow the wife an adjustment of ten percent by reason of her “Kennon” claim.

142.As can be seen from earlier discussion, I have accepted that the husband will have to reach some arrangement with his father in relation to the outstanding debt to the husband’s father in the sum of $170,000.
143.Given that that debt is to be added to the balance sheet then I take it that the wife’s submission in relation to contributions is that it should be 60/40 in her favour.

DISCUSSION
The sale of O property on favourable terms by the husband’s father to the parties
144.The husband says that initial capital contributions were not equal and points to the fact that in about October 1997 the parties brought O property from the husband’s father. It is not disputed that the price was $450,000 and that the sum payable was reduced by the father to an amount of $350,000.
145.Nor is it disputed that the father provided the benefit of $200,000 by way of vendor finance which was interest free for the first five years (that is the years ending December 1998, 1999, 2000, 2001 and 2002). The parties in October 1997 borrowed an amount of $150,000 from the National Australia Bank.
146.The recent valuation of the O property gave an agreed value of the property of $850,000.
147.The husband submits that there is not any suggestion that the parties have done anything structurally significant to improve the facilities to O property. There is, however, evidence from the husband that post separation monies have been contributed by him from post separation endeavours on his part towards what he called an extreme maintenance program. The husband explained that a period of drought is a period of high maintenance. So far as I could tell that program went to structural improvements to things such as fences, improving the pasture on the property, cleaning out dams and the like.
148.Whilst I do not have any specific evidence I infer that the parties used their best endeavours during their time on O property to maintain and conserve the property.
149.The husband submits that the increase in the value of in the O property is attributable to market fluctuation.
150.Mathematically it is said that the $100,000 in the reduction of the purchase price was a gift which represented 22.2 percent of the purchase price of O property at the time. When calculation is done now, that gift is equal to 22.22 percent of $850,000 or $188,870. It is submitted by the husband that the significance of that initial “gift” should now be weighed in at $188,870.

Value of an Interest Free $200,000 Advance
151.Senior Counsel for the husband argues that the value of the interest free loan for the first five years can be calculated by assuming a conservative five percent per annum interest rate. He calculates that on a loan of $200,000 that is equal to about $10,000 per year over a four year period is equal to $40,000.
152.It is fair to submit that on behalf of the husband for about one year, ie 2000/2001, the debt stood at $180,000. The value of the interest foregone was five percent of $180,000, or $9,000.
153.The argument continues that from 2002 until 2004 (inclusive), the balance sheets show that an amount remained at $170,000 (which it is still today). He said that no interest appears to have been paid since 2002 to date. On the evidence that appears to be so. The husband’s counsel did the annual calculation of interest between the years 2002 and 2007 at 5% to be $51,000 ($170,000 x 5% x 6 years).
154.The calculation of the amount of value that the husband’s father has given to the parties is therefore submitted to be:-

The initial reduction in purchase price of $100,000 on today’s values

            $188,870

Plus interest foregone (40 + 9 + 51)

              100,000

            $288,870

155.In support of that submission, Senior Counsel for the husband relies upon what he asserts to be the approach of the Full Court in the decision of Williams & Williams (2007) Fam CA 313 and the NSW Court of Appeal decisions in Kardos v Sarbutt (2006) DFC 95-332 and Bilous & Mudaliar (2007) DFC 95-335.
156.In Froth & Froth (2007) Fam CA 1608 I discuss these cases and the history of the development of the erosion principal (paragraphs 123 through to 145). I adopt those comments in this judgment.
157.At paragraph 145 in the judgment of Froth, I commented:-
145.The statement in Williams and Williams, about giving recognition to the value of introduced assets at the date of hearing has to be read, particularly in a long marriage, in light of the statement by Bereton J at paragraph 66 of Kardos & Sarbutt that “in a long marriage, ongoing income contributions and contributions as a homemaker and parent, if they have not resulted in the acquisition of assets sufficient to recognise that, may warrant the ‘erosion’ of initial contributions so that all contributions can be satisfied to some extent, though not in full, out of the available property”.

158.The husband’s father agreed in general terms that his son and his son’s family worked on the property from the date of marriage in 1986 until the purchase of the property in 1997 with a short time away from the farm between 1990 and 1992. In general terms the husband’s father accepted that his son had worked on O property for about ten years prior to him selling O property to his son. He said that his son had always been a hard worker. These years had been fairly hard times on the farm and during this period they had nearly lost the farm. The husband’s father conceded that his son worked for less than proper wages and that he may have got a share of some of the crop cheques given that the father did not have sufficient funds from time to time to pay regular wages. He conceded that from the time of the transfer of the property he thought he owed his son something.
159.However, the husband’s father’s primary motivation for selling the O property to his son and his wife was that this property had been in the family at that stage for four generations and he wanted that to continue (and he still does).
160.I find therefore that there were two motivations for the husband’s father transferring the property at $100,000 undervalue to the parties. The first was that it in part recognised the hard work that his son had done over a ten year period and secondly he wanted the property to be passed to the next generation. It cannot therefore be said that the whole of the $100,000 can be seen as a gift made on behalf of the husband. Some of it needs to be seen in the context of it being a compensation because the husband’s father thought he owed his son something for his son’s hard personal exertion during the ten years prior to the acquisition of the property. These were years after the marriage when the parties were working together on the farm.
161.Senior Counsel for the husband said this is not a case like James and James (1978) FLC 90-487. There was no evidence that the parties went without or were deprived in any way or worked the farm in the expectation that they would one day get the farm. This, however, is not of great consequence given that I have found about that part of the motivation for the husband’s father to provide the O property at a discounted amount arose from the actual work that had been done on the farm (independent of any expectation the parties might have had for compensation for that work).
162.In this case, given the myriad of other contributions made, a mathematical approach to a particular contribution is not appropriate.
163.There is some force in the argument that some notice needs to be taken of the interest on those borrowings that the husband’s father did not receive. Again, I take the interest saving that has been contributed by the husband’s father on the husband’s behalf into account but not in the precise mathematical way as suggested by senior counsel for the husband.

OTHER CONTRIBUTIONS
164.The wife’s contributions include:-
164.1.Diligently applying herself as a full time homemaker and parent for the husband and the children throughout the marriage;
164.2.A modest contribution by working on a full time basis from 1987 to 1989 and on a part time basis from 2001 until and beyond separation to the extent such employment was available and was consistent with her primary full time responsibility as homemaker and parent;

165.The wife concedes that the husband diligently applied himself in his employment with his father on O property and various off farm positions of employment and after the purchase of O property in 1997 in operating that farming property together with, at various times, off farm employment.
166.The wife submits that the husband’s contributions should be given less weight than would otherwise be the case given the loss of value of the matrimonial asset pool arising from the husband’s failure after the separation to meet periodic payments due to the National Australia Bank and C Company when during the post separation period it is asserted by the wife that the husband received income and funds totalling in excess of $556,415. The amount of the alleged loss was not specifically quantified and in any event I am not convinced that any loss, if it exists, should be a matter to which I give any weight.
167.I am satisfied that there was a downturn in the husband’s earning of income after the separation as a result of a farming downturn because of drought. That is not to say that the husband ceased any farming activities but clearly the income earned in 2002 was not matched in the financial years 2003 and 2004. The wife agreed that the drought bit in 2003.
168.The children have variously lived with each party since separation. In particular, leaving out minor variations, the parenting arrangements have been:
168.1.T has resided continuously with the husband since separation;
168.2.C resided variously with each party until May 2005 and has lived with the husband since then;
168.3.B predominately lived with the wife since separation until April 2006 and has lived with the husband from April 2006 to date.

169.The wife asserted that during times when she had the responsibility for caring for one or more of the children she had never at any time received child support from the husband despite him being assessed to pay various amounts from time to time and having the capacity to do so. The husband in cross examination acknowledged that assessments had been made from time to time but said that he had objected to those assessments for various reasons. There is no evidence before me that there were in fact any enforceable child support arrears and there is no suggestion that there is any current outstanding debt in respect of child support.
170.The parties’ contributions post separation, in the role of parent, favour the husband.
171.The wife submits that since separation the husband has had access to significant monies including personal exertion income. The wife, since separation, has predominately relied upon Centrelink benefits supplemented by modest savings from part time employment. The wife now works in her shop with her new partner.
172.The wife has not had the benefit of any significant marital assets since separation, despite being a co-owner of O property and until sold the R properties and the farming plant and equipment retained on separation. The wife received no income or other benefit post separation from those assets, the benefit being retained entirely by the husband.

THE HUSBAND’S BEHAVIOUR AND THE WIFE’S “KENNON” CLAIM
173.The wife asserted that as a result of particular conduct by her husband during the course of the marriage (both before and after separation) contributions by her were made significantly more arduous.
174.Evidence in relation to these matters is contained at various paragraphs between pages 7 and 18 of her primary affidavit.
175.Some of that material was not relevant to the Kennon argument. Some of it was excluded as inadmissible.
176.On the second morning of the hearing counsel for the husband announced that he did not intend to put all the husband’s versions in relation to particular incidents to the wife. He explained and I accepted that this was on the basis that so far that exercise had only drawn a simple denial of the husband’s version. Counsel for the wife indicated (although perhaps not audibly) that no Browne & Dunn (1893) 6R67 point was to be taken. Given the wife’s highly emotional reaction to the questioning on these matters and the indication given by her counsel, it was appropriate that counsel for the husband adopted the approach that he did.
177.In many of the incidences that I am about to describe, I have two conflicting versions. Some allegations are serious and the provisions of s 140(2)(c) of the Evidence Act 1995 apply to them.

1997-2001
178.The wife’s evidence is that during a period between 1997 and 2001 the wife on about four or five occasions left the home with the children to stay with her mother and step father for a few days to a week. She said in oral evidence that on all occasions it was a similar scenario. The parties would usually argue about the wife’s unwillingness to have sex with him when he came home drunk. He would get angry. She would leave. The first occasion was when B was about 3 or 4 years old in around about 1997/98.
179.The husband responds to this allegation in paragraph 30 of his affidavit sworn on 1 November 2004 (Exhibit C). He agrees that the wife left the farm on a number of occasions. He gives as an explanation “the money had run out and there were financial difficulties on the farm”. He says “[the wife] would yell and scream at me and then go to her mother’s to get what she wanted. This would often occur prior to Christmas”.
180.I accept the wife’s evidence that she had to leave the home on four or five occasions between 1997 and 2001 because of the husband’s anger.

The incident in 2000 or 2001
181.The wife says that in about 2000 or 2001 (six or seven years ago), she was the subject of an indecent sexual assault upon her by her husband. The details are set out in paragraph 30 of her primary affidavit. The allegation which the wife makes is serious.
182.The wife says on this occasion the husband returned home to the farm in the evening when he was drunk. He got into bed with the wife. The wife in oral evidence described how the husband pressured her to have sex with him. She said that she did not want to have sex with him and that she left the matrimonial bed to sleep in B’s bed as B was not there. She said the husband followed her into B’s room and started to yell at her and threaten her. While she was lying in bed he tipped it up and threw her out. During the incident he yelled abuse at her extremely loudly. T and C were in the house. The wife was worried that the husband would wake them up. The husband then left to go back into his room. The wife went to see if the boys were alright. On her way there her husband grabbed her and threw her on the floor. The wife says that the husband then had sex with the wife without her consent. She said that although she repeatedly told the husband that she did not want to have sex with him and tried to push him off he forced himself onto her. She said afterwards he threatened to kill himself by driving into a tree. The next morning the wife says she called her mother and took the children to stay with her mother. The children and the wife remained living with the mother for approximately three weeks. The wife said she was sore and swollen as a consequence of the husband forcing her to have sex with him. She said she informed her mother as to what had happened but did not see a doctor as she was very embarrassed about the incident.
183.The husband denies that he had sex with his wife without consent. He agrees that there was an argument about sex after he had been to the pub. He says “she went and hopped into [B’s] bed and I went into there to sort out the argument. I took her hand to lead her out of the bed, but she tripped on the sheets and fell out of the bed. I laughed at this and [the wife] became more upset”.
184.This version was put to the wife and she denied that it was true.
185.The husband in his evidence recorded that the next morning the wife had repeatedly referred to him as a “bad person”; the husband said that he interpreted that statement by the wife, to be a reference to him being a bad financial manager. I do not accept that explanation. For the wife to call the husband a bad person I find that something “bad” had happened between them.
186.On the balance of probabilities, to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336), I accept the wife’s version of this event.

2001/2002
187.The wife says that the parties rented a property in W from March 2001 for six months and during those six months there were no real problems with the husband’s behaviour.
188.The husband agreed (paragraph 41 of Exhibit C) that there were no real problems between he and the wife during this period of time. He says “because [the wife] wanted to live in town and she could regularly have coffee with friends”. He complained during this period of time that she did not prepare the evening meal because she was at a friend’s house having coffee.

Early 2002
189.The wife next asserts that one evening in early 2002 the husband arrived home at 2am or 3am after a night of heavy drinking. She was in bed asleep. She says that the husband woke her up and said that he wanted to have sex with her. She said no. He asked again and again. She said, as she continued to refuse, he got louder until he was yelling at her. She says that she said to the husband “be quiet, the children will hear”. He is said to have replied “maybe they should hear”. She then said he went into a rage and knocked the clock radio off the bedside table. He left the room and walked down the hallway. As he walked past the linen cupboard door he punched it with his fist.
190.In oral evidence she referred to the punching of the wall but corrected that when she was referred to what she said in paragraph 37 of her affidavit (she remembered on this occasion it was the linen cupboard door that he had punched with his fist).
191.The husband in reply at paragraphs 51 of Exhibit C denied that on an occasion in early 2002 he asked for sex with his wife. He says “I did say ‘do you want to make love?’ In reply [the wife] threw the clock radio at me and said, ‘look at the fucking time dickhead’. After this I was upset and angry and immediately walked out of the bedroom. In frustration I punched the wall at the side of the hallway and then went outside to clear my head”.

2002: Drinking after football matches
192.The wife says that in 2002 the husband started to attend regional football matches.
193.The wife in paragraph 38 of her affidavit provides one example of what happened on an occasion when the husband returned to the home and T was doing his homework. The husband started to tell T he was not doing it properly. T said to him he had been told to do it in a certain way by his teacher. The wife intervened and said to the husband “they do it differently now”. The wife says the husband replied “why do you always stick up for him, he’s a mummy’s boy”. He then turned to T and said “are you happy you caused another fucking blue?” The wife’s evidence is that on these occasions she always felt the situation was balanced on a knife edge and at any time there could be more conflict. She said she became very concerned that the children should be in bed on Sunday nights by the time the husband returned home.
194.In reply the father at paragraph 52 of Exhibit C says that he agrees he would attend football matches on Sunday nights. He says the children would wait up to see him after the games. He said he only ever drank a few light beers after the games and when he came home he would often sit with the children when they were doing their homework and try to learn with them. He said he has no memory of the event that the wife has given evidence about concerning T’s homework (the reference in this passage to ‘try to learn with them’ is a reference to the fact that the husband says he is substantially illiterate and has difficulty reading and writing).
195.I accept the wife’s evidence as set out in the paragraph before last.

The May or June 2002 incident
196.The wife says that during May or June 2002 she had arranged to travel to Bathurst with T for a competition. Friends had agreed to pick her up and drive her there. Prior to the friends arriving the husband started to rant at her and say to her that they should not be going. She says he yelled at her in front of the children and said that her attending the basketball was a ridiculous waste of time and money and that she was only doing it for social reasons. She says in front of the children he grabbed a bill from the kitchen bench and put it on the table. She says:-
“He then grabbed me at the back of my neck and pushed my face into the table. He said ‘can’t you see we have got bills to pay’. The children left the room after witnessing this incident. After the husband released my head I left the room. I was crying and went to the bedroom. As I was sitting on the bed the husband came into the bedroom. I tried to stand up. He pushed me back onto the bed. He yelled abuse at me. I managed to get up again and tried to pass him to get to the doorway. He grabbed me, pushed me to the floor and said ‘I can have you any time I want you’. I begged him to stop because the children were in the house and our friends were due to arrive at any moment. He was being extremely loud and the children could hear him. While I was still lying on the floor in the doorway to the bedroom he tried to take my shorts off. He was extremely rough. [C] then walked up the hallway and saw me lying on my back with the husband on top of me. The husband stopped when he saw [C].”

(The wife in this passage has alleged two assaults and an attempted indecent assault.)
197.The husband responds in Exhibit C as follows:-
(57)I do recall that prior to the friends arriving [the wife] and I got into another argument. I do recall that I grabbed some bills from the kitchen bench and put them on the table and said to [the wife] ‘what are we going to pay these with?’
(58)I strongly deny that I pushed her face into the table and said ‘how about you look at these and decide what we’re going to pay these with’.
(59) [The wife] left the room after this and went into the bedroom and sat on the bed and started crying. [The wife] and I talked about this and I said, ‘you should have thought of this when we put [T’s] name down for basketball’. I then said ‘there is no point crying now’. [The wife] then got up and slapped my face and I pushed her away and walked out of the bedroom. [The wife] continued to cry in the bedroom. I deny saying the statement ‘I can have you any time I want’ to [the wife] and deny pulling her shorts off as she alleges.

198.The wife actually does not say that the husband pulled her shorts off but only that he tried to do so.
199.The husband’s version was put to the wife and she denied that it was accurate.
200.On the balance of probabilities, to the Briginshaw standard, I accept the wife’s version of the events of May or June 2002.

Late 2002
201.The wife says that in mid to late 2002 there was an incident where the husband arrived home drunk on a Friday night. She says she was in bed asleep and the husband woke her, demanding that she have sex with him. She said no. She says that the husband then got into bed and kept demanding that she have sex with him. He said “what’s wrong with you? Have you been playing up? You must have another bloke”. She says the husband then attempted to try to take off her nightie and underwear. She claims he was very rough with her and loud and abusive. His eyes were red and he seemed “out of it”. She says she fought him off and got out of the bed. She walked out into the lounge room. She said that she heard him get up, he knocked the bedside lamp off the bedside table. She said she could hear a banging. It sounded like he was lifting the bed up and down. She was very frightened and did not know what to do. She thought of going into one of the children’s rooms but she did not want to involve them. She then saw T sit up in bed and he yelled out “dad stop it”. She put her head into the doorway and T’s room and said to him “don’t say anything. Just lay there”. B seemed to be still asleep. She says that she then heard glass breaking in the bedroom and later saw the husband had ripped out the middle door from the glass wardrobe.
202.She checked on C. He was sitting on his bed. She cuddled him. She noticed that he had wet his bed. She said she had her arms around C and the husband came into C’s bedroom and started yelling at her. The husband called her a “stupid bitch” and “when are you going to wake up to yourself, you will start doing what I tell you”. He kept repeating this over. The wife said she told him to “stop it, the kids are here and you are frightening them”. He replied “maybe they should know what goes on”.
203.The wife says that the husband left the room and was walking around the house in a rage. She says that she got C up and put some clean boxers on him and put him to bed in the spare bed in his room. She slept with C.
204.She said that the following morning the husband seemed to be in shock as if he did not know what had gone on the night before. The wife found pieces of glass everywhere in the bedroom in the bed.
205.In response at paragraph 60 – 63 (Exhibit C), the husband says that the source of the broken glass was a result of him tripping on a lamp cord and the lamp then smashed all over the bed. In relation to the wife’s assertion that the source of the broken glass was the mirrored door on the wardrobe, the husband, at paragraph 61, says in relation to him opening the wardrobe “unfortunately, the wardrobe then came off the roller and fell out. Luckily I caught the mirrored door. I only broke the light shade, not the mirrored door. There were shards of glass from the lamp in the bed and the banging was me trying to clean the glass out of the bed”.
206.In his oral evidence however the husband said that he had attempted to catch the mirror door but had failed to and “it broke too”. This is a significant inconsistency in his evidence. I formed the view that the husband had no clear memory of what happened on this night.
207.On balance, I accept the wife’s version as to what happened in late 2002.

Frequency of significant events
208.In oral evidence the wife said that there were about six or seven Friday nights and five or six Sunday nights when the husband returned home having been drinking where the wife had to be careful about what she said to him. The six or seven late Friday nights seemed to be related to the end of a contract shearing event at a particular shearing shed and the Sunday nights were connected to the husband being at football matches.

Conclusion in relation to the Wife’s “Kennon” Claim
209.Counsel for the husband did not attempt to address the evidence in relation to domestic violence in any specific way. He contented himself with submitting that the different stories given by the parties could be reconciled on the basis that the parties had different perceptions of what had happened. His submission was that he accepted that the wife believed what she was saying had happened. He was not saying that she was lying but he was saying perceptions are powerful things.

210.He made the point that the evidence was in January 2003 when the wife separated from the husband she did not move very far away (she moved to another part of W).
211.I am not entirely sure that the husband was giving deliberately false evidence about what I find on the balance of probabilities on the Briginshaw standard to be assaults on the wife (including one indecent assault and one attempted indecent assault). I am prepared to accept that either his state of inebriation (and in one instance the wife gave clear evidence that the next morning he seemed to have no memory of what had happened) or some type of psychological denial has managed to block out or blur in his mind as to what actually happened.
212.I think the husband genuinely believed that he never forced himself on the wife. I find that he did. This is not a matter of perceptions.
213.Counsel for the wife referred to Stevens & Stevens (2005) FLC 93-246. The Full Court in that case was dealing with course of conduct which was probably less severe than the conduct I have found happened in the marriage of these parties. The Full Court said:
“The term ‘course of conduct’ is a broad one. We do not think that conduct must necessarily be frequently to constitute a course of conduct though a degree of repetition is obviously required. The wife’s evidence does establish periodic behaviour and its consequences throughout the period of cohabitation.”
214.I find that the wife’s evidence about the husband’s course of conduct is clear and cogent in this case that the wife has established a course of conduct which made her contributions significantly more arduous throughout the period of cohabitation from 1997 to the date of separation.

Conclusion in relation to Contributions
215.Of all the matters that I have discussed, were it not for the “Kennon” claim that the wife has made, the division of net assets based on contributions would be 60 percent to the husband and 40 percent to the wife. I find, however, it is appropriate that the wife receive a 10 percent adjustment of the net assets in respect of the fact that the husband’s course of conduct has made the wife’s contributions significantly more arduous for a significant period at the end of the marriage. Consequently based on contributions, there should be an even division of assets based on the respective contributions of the parties.

SECTION 79(4)(d) – (g) FLA FACTORS
216.Both parties submit that in relation to s.79(4)(d) - (g) FLA factors there should be a five per cent adjustment in favour of the husband.
217.The husband is currently unemployed. I note in paragraph 63 of the husband’s affidavit sworn 13 January 2006 he indicated that he believed that he would be able to be employed at a salary level of approximately $60,000 per annum “in light of my experience and qualifications for working with machinery, including bobcats, excavators, forklifts, backhoes, trucks and buses and the many work opportunities in the Great Lakes area available for people with such experience and qualifications”. He was not tested in cross examination about why it was he was currently not availing himself of those types of opportunities.
218.The three children of the marriage are with him (one of whom is now an adult). He is supporting those children and not receiving any child support from their mother for that purpose. His income is limited to his pension.
219.The wife is self employed. She was not cross examined in relation to the income that she asserted. The wife re-partnered in November 2006. She is currently earning income from her shop. She estimates her income to be $430 per week. The wife’s partner, Mr Y, has no assets of commercial value and only a modest income earning potential. Mr Y was not called for cross-examination and I accept the evidence that is set out in the affidavit that he swore on 30 July 2007.
220.There are current final consent orders between the parties in relation to parenting arrangements which place the younger children in the primary care of their father.
221.I accept that a five per cent adjustment in the husband’s favour on account of s.79(4)(d) – (g) FLA matters is appropriate.

JUST AND EQUITABLE
222.The husband’s position is that the overall pool of assets should be divided 70/30 in his favour.
223.Counsel for the husband provided in submissions an aide memoire asserting the net equity on the balance sheet was $572,771.80. That has to be slightly varied given that he had incorrectly recorded superannuation at $5,000 instead of $5,534.
224.He asserted that the just and equitable range of results in this case was for the husband to receive somewhere between 60 and 70 per cent of the net equity. This would require a payment by the husband to the wife of somewhere between $192,095 and $249,372 (this is to be compared with the orders sought in the wife’s application for final orders for a payment in the sum of $500,000).
225.The wife’s submissions are that overall there should be a 55/45 adjustment of property in her favour.
226.Based on my findings in relation to contributions and s.79(4)(d)-(g) matters, I conclude that the overall adjustment of net assets should be as to 55 percent to the husband and 45 percent to the wife.
227.That distribution could be achieved in the following way:

H gets 55.0%

Assets

Item No.

Description

Percentage

Value

1

O property

100%

$850,000

3

IAG (NRMA) shares

100%

$1,400

6

1995 Hyundai Lantra

100%

$1,000

7

Sundry remaining plant

100%

$17,000

8

Hallett speed boat

100%

$2,500

9

Furniture and Chattels

100%

$3,500

10

Husband's post separation funds

100%

$64,847

11

Add back of legal fees

100%

$0

16

Superannuation

100%

$6,541

Liabilities

Item No.

Description

Percentage

Value

18

C Company

100%

$17,619

19

Rates on O property

100%

$25,930

20

Partnership tax

100%

$50,027

21

Personal tax

100%

$0

22

Partnership debt to A & B accountants

100%

$15,787

23

Debt to accountant, A & B

100%

$6,680

25

Loan due to husband's father

100%

$170,000

H pays W

$280,509

Net Assets

$380,236

W gets 45.0%

Assets

Item No.

Description

Percentage

Value

2

proceeds of sale of R properties

100%

$11,811

4

Trade-in for Falcon Forte

100%

$5,500

5

Hyundai motor vehicle

100%

$0

12

Share in shop

100%

$15,360

13

Furniture and Chattels

100%

$2,000

14

Superannuation

100%

$5,223

15

Add back of legal fees

100%

$5,700

Liabilities

Item No.

Description

Percentage

Value

17

Debt to wife's mother and father re Hyundai

100%

$0

26

Debt for shop

100%

$15,000

24

Citibank credit card

100%

$0

W receives

$280,509

Net Assets

$311,103

228.As can be seen from the above for the husband to retain the O property and the other assets in the above table, he would need to pay to the wife the amount of $280,509. Standing back and looking at the matter on an overall basis, I consider this distribution of assets to be just and equitable.

PROPOSED ORDERS
229.In order for the husband to keep the farm a number of things will have to happen:-
229.1.The husband will be able to raise an amount to pay the order for payment to the wife in the sum of $280,509;
229.2.Accommodation has to be reached with the husband’s father in relation to the current debt of $170,000 in respect of which a caveat has been registered in relation to the non secured mortgage on the O property;
229.3.A further $100,000 would have to be invested if the property was going to be farmed with second hand plant (alternatively contract labour could be employed).

230.At paragraph 63 of his affidavit sworn 13 January 2006, the husband said that his father was prepared to, and financially able to, substitute himself to NAB as creditor to the partnership, and to make appropriate financial arrangements with the husband to pay out all existing debts of the parties; to pay a property settlement sum to the wife in consideration of her transferring her interest in the partnership to the husband and terminating the partnership.
231.At that time the husband said that such arrangements would require his father to pay out the debts to National Australia Bank and others of about $346,000 (other than the $200,000 debt owed by the partnership to his father) which loan would be secured against O property. The husband said it would require the selling of other partnership property other than O property worth about $290,000.
232.The husband speculated that that arrangement after payment to his wife would leave about $90,000 in property in his hands and a debt of about $556,000 owed to his father. He said “I am prepared to work to repay that debt in the long term. I anticipate being able to secure more highly paid work once these proceedings are completed”.
233.The husband’s oral evidence about arrangements that he could now make with his father was quite different to what he had set out in his January 2006 affidavit. He said that his relationship with his father had broken down and he could not be confident of what help his father would give him, certainly any help given would have strings attached in the husband’s view.
234.The husband’s father said that he would try and help his son out but also said that he had now “gone 70” and he was not going to live forever. He would try and help his son keep the farm because he would like to see the farm kept in the family name. He would not say to his son “bad luck, you’re on your own”. The husband’s father confirmed in evidence that although he was prepared to help retain the farm, it would very much depend upon the terms upon which he was asked to help as to whether or not he would or could.
235.The husband’s father said that he would keep helping his son in order to keep the farm but he was not a young man anymore and he had already gone without by not calling upon the money that he has been owed under the unregistered mortgage.
236.It was put to the husband that the fact is he had not been on the O property since 2001 and that there had been a clearance sale of the farm equipment. He responded by saying that the property was in his blood and that he would be back there quicker than his furniture if he was given an opportunity. He also believed that the farming community around O property would support him in any attempt to re-establish farming operations on O property.
237.Given the financial support that the husband’s father has indicated that he would consider, it is appropriate to give the husband an opportunity to retain the farm.
238.Counsel for the wife asked that I be careful about the orders that I make and adopt his form of orders sought by the wife. He said that there was a real risk that if the orders were not structured so that existing joint debt was extinguished we could have a situation where the husband is able to sell the farm to his father, go bankrupt, and leave the wife with money invested in a new property but subject to claims from creditors. I will make orders substantially in the format sought by the wife. Because it may be that finalising partnership affairs with the Australian Tax Office could take some time, my orders do not require that to happen prior to the majority of other matters being completed. Monies owing to the ATO will be a charge on the O property should it be transferred to the husband or otherwise if there is a sale of O property, monies will be retained in anticipation of the satisfaction of that potential liability.
239.I think it is appropriate that if the husband defaults in the payment that I have ordered that the wife receive the higher of two amounts:
239.1.the amount of $280,509, together with interest pursuant to the Family Law Rules to accumulate from 60 days after these orders are made; or
239.2.33 percent of the gross proceeds of the sale of the O property;

whichever amount is higher.
240.The percentage is calculated as follows:-
$280,509 ¸ $850,000 = 33 percent

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 30 July 2008

[2008] FamCA 606

30 July 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Charge

Constructive Trust

Res Judicata

The initial reduction in purchase price of $100,000 on today’s values	$188,870
Plus interest foregone (40 + 9 + 51)	100,000
$288,870

H gets 55.0%
Assets
Item No.		Description	Percentage	Value
1		O property	100%	$850,000
3		IAG (NRMA) shares	100%	$1,400
6		1995 Hyundai Lantra	100%	$1,000
7		Sundry remaining plant	100%	$17,000
8		Hallett speed boat	100%	$2,500
9		Furniture and Chattels	100%	$3,500
10		Husband's post separation funds	100%	$64,847
11		Add back of legal fees	100%	$0
16		Superannuation	100%	$6,541
Liabilities
Item No.		Description	Percentage	Value
18		C Company	100%	$17,619
19		Rates on O property	100%	$25,930
20		Partnership tax	100%	$50,027
21		Personal tax	100%	$0
22		Partnership debt to A & B accountants	100%	$15,787
23		Debt to accountant, A & B	100%	$6,680
25		Loan due to husband's father	100%	$170,000
H pays W			$280,509
Net Assets			$380,236
W gets 45.0%
Assets
Item No.	Description		Percentage	Value
2	proceeds of sale of R properties		100%	$11,811
4	Trade-in for Falcon Forte		100%	$5,500
5	Hyundai motor vehicle		100%	$0
12	Share in shop		100%	$15,360
13	Furniture and Chattels		100%	$2,000
14	Superannuation		100%	$5,223
15	Add back of legal fees		100%	$5,700
Liabilities
Item No.	Description		Percentage	Value
17	Debt to wife's mother and father re Hyundai		100%	$0
26	Debt for shop		100%	$15,000
24	Citibank credit card		100%	$0
W receives			$280,509
Net Assets			$311,103