Wingham and Woden

FAMILY COURT OF AUSTRALIA

WINGHAM & WODEN

[2008] FamCA 382

FAMILY LAW – PROPERTY – Alteration of property interests

Family Law Act 1975 (Cth)

Chorn and Hopkins (2004) FLC ¶93-2004

APPLICANT:

Mr Wingham

RESPONDENT:

Ms Woden

FILE NUMBER:

PAC

2202

2007

DATE DELIVERED:

30 April 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

15-16 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Thistleton

SOLICITOR FOR THE RESPONDENT:

Mr T. Reeve

Orders

Within six weeks of the date of making these Orders, the wife pay to the husband the sum of $300,402.00.
Simultaneously with such payment the husband transfer to the wife all of his right, title and interest in the following properties known as and situated at:
(a)100 G Street being all of the land in the Certificate of Title under folio identifier …; and
(b)102 G Street being all of the land in the Certificate of Title under folio identifier ….
Simultaneously with the transfer in Order 2 above, the wife shall discharge the mortgages secured over the said properties and refinance the said mortgages into her sole name.
Pending compliance with Orders 1 and 3 above (or Order 7 below in the event of default), the wife shall forthwith do all acts and things and sign all documents necessary to charge all her right title and interest in and to the share capital of the company W Pty Ltd in favour of the husband as security for the due performance and observance by her of the orders herein made.
Pending compliance with Orders 1 and 3 above (or Order 7 below in the event of default), the wife be and hereby is restrained from causing or allowing the company to incur further liabilities other than those for which it is liable as at the date of making these Orders and such other liabilities as are incurred by the company in the normal course of trade and commerce in its business.
In the event that the wife fails to comply with Orders 1 and 3 within six weeks of the date of making these Orders, the wife shall thereafter forthwith do all acts and things and sign all documents necessary to wind up the company and upon distribution of capital to its shareholders the wife shall pay to the husband the sum of $300,402.00 together with interest thereupon calculated from the date of default at the rate determined by Rule 17.03 of the Family Law Rules 2004 as amended from time to time.
The husband retain as his property the household contents of 102 G Street as at the date of making these orders, including sporting memorabilia and jewellery having an agreed total value of $13,720.00.
Unless otherwise provided for in these orders, the husband and wife have the sole right, title and interest respectively in:
(a)chattels, goods, furnishings, property which are at the date hereof in their respective possession;
(b)any money, shares, debentures or investments which stand in their respective sole name of the date hereof; and
(c) their respective superannuation entitlements.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The issue of costs is adjourned for consideration to a date to be fixed on application to be made within 21 days to Justice Fowler’s Associate.
In the event that an application is made for an order for costs by either of the parties:
(a)Any applicant party is to file and serve an updated Financial Statement and any other necessary affidavit evidence with a submission in writing as to the basis upon which the orders for costs are sought by that party within 21 days.
(b)Any respondent party to any such application is to file and serve within a further 21 days of the service of such a submission and statement an updated Financial Statement, and a submission in writing in answer.
(c)Any applicant shall have a further 14 days in which to lodge any submissions in reply and any necessary affidavit evidence.
In the event that no such applications are made within 21 days from the date hereof there will be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2202 of 2007

Mr Wingham

Applicant

And

Ms Woden

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are competing applications for alteration of property interests in which the most substantial asset of the parties was acquired by way of gift or reward from the wife’s father in 2003 during the latter part of their marriage which commenced in 1981 and concluded with their separation in 2006.

b ackground facts

The husband was born in December 1956 and is presently aged 51 years.
The wife was born in March 1960 and is presently aged 47 years.
In 1974 the business of W Pty Ltd was acquired by the wife’s parents.
In April 1981 the husband and the wife married.
In March 1984 the parties’ son was born.
In 1984 the husband completed his apprenticeship with W Pty Ltd. Both parties worked in this business throughout the marriage. The wife worked there all the time while the husband spent some periods when he worked elsewhere. He, for example, commenced his own business in 1985 but all his contracts were said to be through or with W Pty Ltd.
In 1982 the parties purchased land at M and subsequently build a home on it.
In 1985 the company acquired the property at F and relocates its business to premises on the site. The purchase price of the property was $485,000.00.
In November 1987 the parties’ daughter was born. The husband returned to work for W Pty Ltd.
In 1989/90 the M home was sold and land at D was acquired on which a home was built.
In 1990 the husband was appointed the Factory Manager for W Pty Ltd.
In 1992 the husband commenced working in sales for a time before returning to work for the company.
In 1999 the husband was diagnosed as having a blood clot. He took time off work and attended to home duties and then obtained work away from his father-in-laws business.
In 2003 the husband returned to work for W Pty Ltd.
In late 2003 the wife’s parents transferred to their son 20 per cent of the issued shares of the company W Pty Limited and to the wife 80 per cent of the issued shares. The husband retains one share. The evidence suggests that a value could be ascribed to the shares received by the wife of $903,324.00.
In October 2005 the parties purchased an investment unit in Queensland. The equity in the property is small, the purchase price being $695,000.00 of which $680,000.00 was provided by a mortgage advance from the Bank of Adelaide.
In February 2006 the husband and the wife purchased adjoining homes at L being 100 G Street and 102 G Street. The purchase prices for the properties were $720,000.00 and $760,000.00 respectively. The purchase price was funded in part by an advance from the Macquarie Bank to the sum of $1,036,000.00.
In February 2006 the D home was sold and the proceeds applied to the deposit and acquisition costs of the G Street properties.
In December 2006 the parties separated.
In December 2006 the parties purchased a second investment property in Queensland for a purchase price of $975,000.00. The purchase price was provided to the extent of $828,000.00 by a mortgage advance from Seiza.
In October 2007 the parties consented to an order described as a partial property settlement order. The effect of the order was that the two Queensland units pass to the wife’s disposition in return for the husband receiving a sum of money. The intent was that the value of the equity in the property was divided equally between the parties. The wife sold the second unit and retained the first unit and the husband received an amount of approximately $61,665.00. There is a dispute before me as to whether the husband received an amount which is in accordance with the Order.
In November 2007 the wife terminated the husband’s employment with W Pty Limited and he moved to regional New South Wales and took up residence with his parents.
The wife continued to work for W Pty Ltd. The husband has not been particularly successful in gaining employment but is presently working as a canvasser for sales for a company in the local area. He is paid $80.00 per day for his efforts and commission on concluded sales. The work is part time and the commissions so far have been few and in any event amount to only $80.00 per concluded sale.
The wife continues in her occupation as managing director of W Pty Ltd in which occupation she receives an income of $2,089.00 per week and appears also to have access to funds provided on loan account from time to time.
During the last year of the parties’ marriage each one of the loan accounts of the wife in the company had balances which moved. One of the accounts reduced and the other account increased and the net increase was about $80,300.00.
During the following year the husband received monies amounting to $98,640.00, part of which was the amount he received from the partial property settlement referred to above and amounting to $61,665.76.
At the commencement of the proceedings the parties produced a balance sheet setting out their contentions as to the amount of the property of the parties or either of them. Following the evidence a further balance sheet was produced. After the conclusion of addresses a further balance sheet was produced given that concessions had been made and agreement reached on some items.
That balance sheet was as follows:

Current Assets
Asset	W’s value ($)	H’s value ($)	Dis/Agreed
102 [G Street]	600,000.00	600,000.00	A
100 [G Street]	600,000.00	600,000.00	A
[1^st Qld property] equity	61,665.56	71,449.44	D
[W Pty Ltd]	907,766.00	907,766.00	A
Leave entitlements	-	88,232.00
Loan account addback	80,308.00	D
Partial Distribution	61,665.56	23,600.00	D
Jewellery
Wife’s Jewellery	9,912.00	9,912.00	A
Husband’s Jewellery	10,920.00	13,920.00	A

W’s ING Bank account	565.00		565.00		A
W’s St George Bank account	400.00		400.00		D
H’s St George Bank account	400.00		400.00		D
Wife’s paid legals	6,879.00		6,879.00
Husband’s paid legals	60,524.00		524.00
Subtotal of Assets	$2,320,697.12		$2,403,955.44
Liability
Mortgage – Macq Bank (100)	576,000.00		576,000.00		A
Mortgage – Macq Bank (102)	600,000.00		600,000.00		D
W’s Westpac Card	20,008.00		20,008.00		D
W’s St George	9,609.00		9,609.00		D
W’s CBA Mastercard	12,250.00		12,250.00		D
W’s Citi Bank Card	13,405.00		13,405.00		D
David Jones	4,498.00		4,498.00		D
H’s Visa NAB	2,600.00		D
H’s Visa St George	6,500.00		D
H’s loan from [brother]	39,700.00
Amex	5,600.00		D
[Parties’ son]	10,000.00		D
Subtotal of Liabilities	$1,291,070.00		$1,244,870.00		D
Net Assets	$1,029,627.12		$1,159,085.44		D
Superannuation
Superannuation Fund	Value ($)	Wife ($)		Husband ($)
AXA Super	68,946.00	68,946.00
G Super	12,000.00	12,000.00
[W] Pty Ltd	64,333.00	64,333.00
Super Fund
Net Superannuation Held	$145,279.00	$64,333.00		$80,946.00

Although the wife’s liabilities were disputed as precisely the amount owing at separation it was conceded by the husband, the difference being small, that they could be taken into account in determining the pool of assets.
The husband’s valuation of the interest of the wife in the first Queensland property goes back to the consideration of a dispute as to whether or not the orders made for “interim property settlement” were fully complied with.
In seeking to determine the pool of assets there are a number of adjustments sought by each of the parties and about which they are in dispute. I note that there is a current fashion in this Court to apply a technique of adding back to a balance sheet of assets what amount to notional assets but not real assets and then giving credit to the party who notionally receives it for that asset.
The decision of Chorn and Hopkins (2004) FLC ¶93-2004 makes reference to the practice in relation to the payment of legal costs. It seems an appropriate assisting tool to determine what is just where the pool of assets which might otherwise be available for division between the parties is unevenly depleted in the service of the parties’ legal costs, particularly in a legislative framework where the usual order for costs is that each party pays and bears their own.
However it seems to me that the process has all the hallmarks of becoming a creeping green tide in the property cases that come before this Court. Whilst it is not my intention to play King Canute to that tide, I observe that in those cases, the task facing the Court, is to do justice between the parties, in the alterations (if any) to be made to their property interests. In making decisions the Court does so within a broad judicial discretion.
In some of those cases the Court is confronted with the pursuit by parties of “add backs” of amounts which are minimal in relation to the overall quantum of assets and which do not greatly assist in the exercise of the broad statutory discretion.
The practice in some cases of seeking to argue an add back for any adjustment no matter how small is to be discouraged in my view.
There is no statutory warrant for a court to divide notional assets added back and to the extent that the process is used at all, it can only be an aid to the finding of a just solution. It is only one of many tools that might be used for that purpose.
However, in my view, the stratagem of creation of notional assets can not divert the Court from the task it has as set out in section 79, namely to consider the matters required to be considered under the section including issues of contribution, and the factors under section 75(2) and in the upshot to do what it considers in the exercise of its broad discretion is just and equitable between the parties.
Having said that, the first adjustment that is sought in this case relates to the monies received by the parties pursuant to the interim property settlement. The husband has argued that all that should be included is the motor vehicle which he purchased with portion of the sum that he received, he having spent the balance on reasonable living expenses. It is suggested by the wife that the husband should be treated as having the totality of the funds to which he was entitled under the interim property settlement since she retained her entitlement intact.
In my view, the quantum of the interim property settlement at the time it took place should be added back into the balance sheet. That the husband has spent money he had by way of reasonable living expenses, his employment with W Pty Ltd having been terminated by the wife and his present modestly paid employment is a matter that I can and will consider in my considerations under section 75(2). In other words, in determining the parties’ relative means I will take into account what he now has rather than what he had.
Each of the husband and wife have paid legal expenses. The husband’s evidence is that an amount of $9,776.00 (part of those legal expenses) was paid from his funds held at the date of separation or thereabouts. Other legal expenses were paid from a loan made to the husband and it seems that at least $9,252.00 of that advance has not been spent on the payment of costs. Accordingly, I will include in the balance sheet as an asset of the husband legal costs amounting to $9,776.00 and a liability of $9,252.00 to the brother. Since there appears no immediate explanation of the expenditure of the sum of $9,252.00, I will take it into account in a consideration of matters under section 75(2) that the husband has had this sum as the balance sheet does not otherwise show any asset to represent it.
The husband has urged through his counsel that I should notionally add to the balance sheet the amount of the wife’s entitlement to long service leave referred to in the valuation of Mr P. The reason given for this request is that the amount of the company’s liability for the leave has been crystallised in the valuation as a liability in a sum certain. Eighty per cent of that liability is reflected in a diminution in the value of the shares held by the wife, the valuation being conducted on a net asset backing basis. It is argued that having been so crystallised and being an amount from which she should benefit it should be shown in the balance sheet as a crystallised asset of the wife.
I decline to do so. The company legitimately accrues as a potential liability the accrued leave entitlements of the wife. It is not known at this time whether the leave will be taken by the wife or whether she will take the money represented by the leave entitlement. I will however take into account her entitlement to that leave as a financial resource of the wife in a consideration of the matters referred to in section 75(2).
The husband asserts that the wife should have added back into the balance sheet, as an asset of hers, the amount spent by her and reflected in her loan accounts in the company for the year ending June 2007. Those movements show a borrowing from the company of a net amount over two loan accounts of $80,308.00. It is noted that the valuer, in valuing the wife’s shares and interests in the company, has subtracted from the value of her interest in the equity of the company the amount due to it on shareholders loan accounts.
I am urged by the husband to add the amount back in the circumstance that the husband tenders part of exhibit 12 which sets out a request for particulars made by the husband’s solicitors of the wife’s solicitors and dated 7 April 2008 asking for particulars of expenditure of the account. Also part of exhibit 12 is a statement of two pages for the period from July 2006 to June 2007 showing a dissection of the amounts paid on the wife’s Centurion card and debited to her loan account. Of those debits the wife agrees that at least $10,242.48 was spent on entertaining employees of the company. As such an expense it is not one in which the husband should be required to share and I add that back as an asset of the wife.
Otherwise the evidence of the wife is that the amounts which were drawn on this and indeed her other credit card accounts were applied to meet her expenses. In some cases those expenses were paid in a convoluted way through the company loan account but nevertheless they were spent, on the wife’s evidence, on her reasonable living expenses. In the circumstances, save for the amount referred to, I decline to add the increase in the loan account back.
The husband and the wife are at issue as to whether the husband has received his full entitlement to the interim property settlement. The issue between the parties is whether certain costs incurred by the wife in relation to the implementation of the settlement are deductible for the purpose of calculating the amount to which the husband was entitled. To the extent that they have been wrongly deducted the husband is entitled to one half of the amount so deducted and the wife has a liability to him for that amount.

The costs claimed by the wife as deductible are:
a)An amount of net legal costs of $8,238.00 for an advance to the wife.
b)A fee for a bank cheque of $80.00
c)Fees incurred on the additional loan procured by the wife of $2,035.
These amounts in all total $10,353.00.
The amounts are referred to in Exhibit 10.
The order which created the interim property settlement was explicit in its terms and provided, inter alia, a scheme for calculating an amount to be paid to the husband. That calculation was referred to in Order 6 of those Orders dated 31 October 2007. The fees incurred appear to have been incurred in relation to an advance to the wife of a sum of $50,000.00. I cannot on the evidence before me associate the expenses claimed with the deductions entitled to be made under the provisions of the order. Accordingly, I find that they were not properly deducted and the husband is owed the sum of $5176.50 and that will be an asset included in the balance sheet and the wife will have a corresponding liability for that amount.

Based on these decisions the balance sheet is now as follows:

Asset	W’s value ($)	Husband value ($)	Found Assets and Liabilities ($)
102 G Street	600,000	Agreed	600,000
100 G Street	600,000	Agreed	600,000
Wife’s partial property settlement entitlement	61,665.56	71,449.44	66,841
W Pty Ltd	907,766	Agreed	907,766
Balance due by wife to husband in relation to interim property settlement	5,176
Husband’s Partial Property Settlement entitlement	61,665	61,665
Amount expended by wife on staff amenity	10,222	10,222
Wife’s Jewellery	9,912	9,912
Husband’s Jewellery	13,920	13,920
Wife’s ING Bank account	565	565
Wife’s St George Bank account	400	400
Husband’s St George Bank account	400	400
Wife’s paid legals	6,879	6,879
Husband’s paid legals	9776	9,776
$2,293,522
Liabilities
Mortgage – Macq Bank (100)	576,000	Agreed	576,000
Mortgage – Macq Bank (102)	600,000	Agreed	600,000
Wife’s Westpac Card	20,008	Agreed	20,008
Wife’s St George	9,609	Agreed	9,609
Wife’s CBA Mastercard	12,250	Agreed	12,250
Wife’s Citi Bank Card	13,405	Agreed	13,405
David Jones	4,498	Agreed	4,498
Husband’s Visa NAB	2,600	2,600
Husband’s Visa St George	6,500	6,500
Husband’s Loan from Brother	9252	9,252
Amex	5,600	5,600
Parties’ son	10,000	10,000
Amount due by the wife to the husband	5,176	5,176
Total Liabilities	$1,274,898
Nett Assets	$1,018,624

Superannuation Fund	Value ($)	Wife ($)	Husband ($)
AXA Super	68,946	68,946
G Super	12,000	12,000
W Pty Ltd	64,333	64,333
Net Superannuation Held	$145,279	$64,333	$80,946

Total Net Assets and Superannuation: $1,163,903.00.

Having made that determination I must now consider the contributions of the parties. I am asked by the solicitor for the wife to make a separate consideration of the asset comprising the major asset of the parties being the shares in W Pty Ltd by reason of its source and its date of acquisition. Whilst an asset by asset approach might be suitable for the circumstance of a short marriage, this is a marriage of many years in which there have been a myriad of contributions by each party over a long period and in many diverse forms. In my view, the appropriate approach for this marriage is therefore to consider the contributions and the division of the assets on a global basis.

Contributions

The husband filed an affidavit in the proceedings and gave oral evidence. His affidavit sets out the details of the contributions which he says he made under the various headings set forth in section 79 to the marriage from its commencement in 1984 to its conclusion in December 2006. He had no assets of significance at the date of his marriage to the wife. At the time of the marriage the husband was a public servant but resigned on or about the time of the marriage from that job and commenced working in the wife’s parents business. At that time the wife was employed in the same business as a clerical assistant.
The husband deposes that throughout the marriage the outside maintenance of the home (subject to the wife doing some gardening inferentially of a minor nature) was his responsibility. This involved in the case of the D property in which the parties lived from 1990 until 2006 the maintenance of grounds comprising two and a half acres. He says and it is not gainsaid that he was responsible for the building of gardens including garden bed and retaining walls, lawns, paving, landscaping and fencing and the erecting of play equipment for the children.
The husband asserts that he otherwise contributed equally with the wife to the domestic chores and was responsible for cleaning the parties’ motor vehicles. He assisted the wife with the shopping and says that for the last nine years he was solely responsible for that task.
The husband was appointed a director of the Company W Pty Limited and deposes that he was appointed in 1985 and ceased to hold that office in 2000.
The husband says that the wife took three months off at the time of the birth of the parties’ son, and that she, during that period, was the primary carer for him. However, he points out that after that period the wife returned to work and that he assisted at work in caring for the child as other duties took her attention. The parties’ son was thereafter placed in a day care centre or with his grandmother to care for one day a week. The husband says that the wife worked from 9.00 am until 3.00 pm each day from shortly after their son’s birth and that this pattern of work continued until he commenced schooling. The husband detailed the shared nature of the child’s care and says that he was involved in all facets of it.
On the birth of the parties’ daughter, the wife again took off a period of 3 months from work and thereafter brought the daughter to work. The husband detailed the like contributions to her care.
The husband provided details of his contributions as a father as the children progressed through school and in every respect he appears to have been conscientious in fulfilling his role as a parent. He involved himself particularly with his son’s sporting functions.
The husband’s affidavit details his employment both within and outside the company W Pty Ltd. He details his working hours as usually between 6.30 am and 4.00 pm or 4.30 pm each day. He was cross examined on this subject and shown a statement of hours which was prepared by him for business purposes showing lesser hours. He said that he always put in the same hours for himself since he was paid a managerial wage which did not entitle him to any overtime in any event so inferentially there was no point in keeping a record of it. In my view the explanation and the way in which it was given was entirely believable and the wife confirmed in her evidence that his wage was indeed a managerial wage in that sense. The husband also details work which he did on occasions on a Saturday morning. His wage however did not vary because of it.
Following a period when the husband was admitted to Hospital with a blood clot in the lung in 1999 he recuperated for about 8 months and during that period undertook the care of the children by taking them to school and collecting them after school. The evidence is that the husband did much of the housework and some cooking although in oral evidence he indicated that most of his cooking activities were in the nature of barbecues and that otherwise his wife was a superior cook. During this period he performed household chores, attended to canteen duty at the children’s schools and attended sports carnivals and other activities. He attended to shopping for household needs.
In her evidence the wife sought to minimise the contributions of the husband set out in his affidavit. In the husband’s oral evidence he was more inclined to give appropriate credit to the wife than was the wife, who gave it, in my view, most times mostly grudgingly. Overall, I came to the view that the husband’s contribution was greater than the wife asserted and more likely was reflected in his evidence. There was an attack on the husband because of alleged excessive drinking and expenditure of money on alcohol. One was left with the impression at the end of the cross examination of the husband that this was thought by the wife to be significant. It tended, however, to lose a lot of its significance when the wife in cross examination agreed to a demonstrated capacity herself to spend some significant amounts of money on the purchase of alcohol as well and agreed that during the marriage the parties often shared drinks. In the event I did not come to the conclusion that it was an assertion of particular relevance to the task I am obliged to undertake in assessing the value of the contributions of the parties.
The husband details that he gained employment in the management of a business at a salary of about $692.00 per week (in early 2000).
On 19 June 2003 the wife purchased 80 per cent of the shares in W Pty Ltd for the sum of $5001.00. The evidence of the independent expert is that the value of those shares at that time would have been $903,324 and if determined on the same basis now would be $1,069,074. However, for the purpose of the proceedings, it is noted that the value is set at $907,766 since the wife’s loan account is excluded as an asset for the purpose of the valuation.
The wife in her evidence said that during the marriage she was devoted to her career with the company, to the company itself and making it profitable. She says with candour that the provision to her from her father was in recognition of his desire that the company should remain in family hands and that he provided her with the shareholding she had as a pre mortem inheritance and as a reward for her devotion to the company and its success. It is noted that at this time he provided for a transfer of 20 per cent of the shareholding in the company to his son, who also worked in the company.
There is no doubt that on the evidence her contribution to the company was made possible in part by the husband’s contribution to the marriage. That was acknowledged by her Counsel and herself. The issue is what division of property represents an adequate recognition of that contribution. and the contributions made in many ways by each of the parties both to the marriage and family and to the acquisition conservation and improvement of the property of the parties or either of them.
On a consideration of the contributions of the parties I assess that a contribution in the order of 30 per cent to the husband and 70 per cent to the wife is an appropriate assessment .
I now turn to a consideration of the matters required to be considered under the provisions of section 75(2) of the Act.
a)The wife declares in her statement of financial circumstances filed in these proceedings that she has an income of $3,589.00 per week, of which salary and wages amounts to $2,089.00.
b)The husband declares in his statement of financial affairs that he has an income of $400.00 per week
c)The wife has had access to loan accounts with the company which, whilst creating a liability in her hands, have assisted her from time to time with cash flow.
d)Her present income seems to be not less than about five times that of the husband and there is no doubt that the financial resource of her present earning capacity (which increased over the period of the marriage) was made possible in part by the role that the husband played in the marriage and the support that he gave her and the family.
e)The wife is richer in capital than the husband and significantly so.
f)The parties lived comfortably during this marriage.
g)The marriage is of long duration.
h)The husband has had some ill health but there is no present indication of any detriment to his earning capacity by reason of that .
i)The wife does not assert that she is in bad health.
j)The wife asserts that she has met the mortgage commitments of the property at 100 G Street since the separation. However that is the property in which she has resided and the husband has not.
k)
She has, however, also met the expenses on the property at

102 G Street
. It is understood that the husband has not contributed to those expenses but neither has he had occupancy of it. It is noted that the property appears to have been occupied by the parties’ son as a tenant. The evidence is that there has been a deficiency in income and expenditure in relation to that property in the order of $42,000.00 since separation. To the extent that the wife has maintained this asset without assistance from the husband the benefit has fallen to both of them and accordingly I believe that the justice of the case requires that I take this into account.
l)I take also into account that the husband, having had his employment terminated by the wife, has spent (on what appears to be reasonable living expenses and a gift to his daughter) the amounts he received on resignation and in partial property settlement except to the extent that they are represented in a motor vehicle of value of about $23,600.00.
m)I take into account that the wife has an entitlement to long service leave in the sum of $87,849.00 .
n)I take into account that the husband’s balance of liability to his brother is not demonstrably reflected in assets and that he has had the use of that money since borrowing it.
There appears little doubt that upon leaving the marriage and looking to the future, the financial position of the wife will be significantly more secure and that she will be able to earn significantly more income than the husband. In the circumstances I believe that an adjustment ought to be made to the parties interests in property from that which would be dictated by a consideration of contributions only and I believe that adjustment would be appropriately recognised by a division of the assets between the parties in the order of 39 per cent to the husband and 61 per cent to the wife.
Accordingly it is proposed that the assets be divided as follows to achieve that end:

Asset / Liability	Husband ($)	Wife ($)
102 G Street	600,000
100 G Street	600,000
Wife’s partial property settlement entitlement	66,841
W Pty Ltd	907,766
Husband’s Partial Property Settlement entitlement	61,665
Balance due by wife to husband in relation to interim property settlement	5,176
Amount expended by wife on staff amenity	10,222
Wife’s Jewellery	9,912
Husband’s Jewellery	13,920
Wife’s ING Bank account	565
Wife’s St George Bank account	400
Husband’s St George Bank account	400
Wife’s paid legals	6,879
Husband’s paid legals	9,776
AXA Super	68,946
G Super	12,000
W Pty Ltd	64,333
Total Assets and Superannuation	$171,883	$2,266,948
Liability
Mortgage – Macq Bank (100)	576,000
Mortgage – Macq Bank (102)	600,000
Wife’s Westpac Card	20,008
Wife’s St George	9,609
Wife’s CBA Mastercard	12,250
Wife’s Citi Bank Card	13,405
David Jones	4,498
Husband’s Visa NAB	2,600
Husband’s Visa St George	6,500
Husband’s Loan from Brother	9,252
Amex	5,600
Parties’ son	10,000
Amount due by the wife to the husband as unpaid balance of interim settlement	5,176
Total Liabilities	$18,352	$1,256,546
Nett Assets	$153,531	$1,010,402

($)	($)
Total Assets $1,163,903
Husband to receive 39%	453,933
Less amount already held	153,531
Adjusting payment by wife to husband to achieve the percentages above	300,402
(300,402)
710,000
Net Result	$453,933	$710,000
Percentage division	39%	61%

I have considered the outcome created by the above decision. It will afford the recognition that I think is required of the late arrival in the marriage of a gift from the wife’s father yet at the same time provide real substance to the contributions made by the husband to the gift to the extent that it recognises the wife’s devotion to the company and his contributions made aliunde to the marriage. It will afford the husband a capacity to get on with the rest of his life with a measure of financial security whilst leaving the wife, having regard to the totality of the evidence, in a position which appropriately reflects the matters referred to above. In all the circumstances, I consider it to be just and equitable and for that reason requiring no further adjustment, and accordingly make the orders set for above.

Costs

I propose to make the orders and directions in relation to any application for costs that might be made as set forth above.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 30 April 2008

[2008] FamCA 382

30 April 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Constructive Trust