FEDERAL CIRCUIT COURT OF AUSTRALIA
NEWTON & THOMAS	[2015] FCCA 1237	

Catchwords: 
FAMILY LAW – Property – whether just and equitable to make an order – acceptance by the parties that it is just and equitable to make some form of adjustment – contributions – subsection 75(2) factors.

PRACTICE & PROCEDURE – Ethics – lawyer’s duty to the Court is higher than the duty to the client.	

Legislation:
Family Law Act 1975, ss.75, 79	

Bevan & Bevan (2013) FLC 93-545
C & C [1998] FamCA 143
C & C (2005) FLC 93-220
Clauson & Clauson (1995) FLC 92-595
Clives & Clives (2008) FLC 93-385
Commonwealth v. Milledge (1953) 90 CLR 157
Ferraro & Ferraro (1993) FLC 92-335 
Fielding & Nichol [2014] FCWA 77
Garrett & Garrett (1984) FLC 91-539
Hayne & Hayne (1977) FLC 90-265
Hickey& Hickey (2003) FLC 93-143
DJ & AJ (2006) FLC 93-289
Kessey & Kessey (1994) FLC 92-495
Lee Steere  (1985) FLC 91-626
Lenehan & Lenehan (1987) FLC 91-814
M & M [1998] FamCA 42
Mayne & Mayne (2011) FLC 93-479
Milankov & Milankov (2002) FLC 93-095
NSW Bar Association v Thomas [No.2] (1999) 18 NSWLR 193
Poulos & Poulos (1984) FLC 91-515
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70

Ethical Standards for Family Lawyers: Peter Cummings SC, Sound Education in Family Law, March 2015	

Applicant:	MS NEWTON	

Respondent:	MR THOMAS	

File Number:	LNC 667 of 2013	

Judgment of:	Judge Roberts	

Hearing dates:	5, 26 and 27 February 2015	

Date of Last Submission:	27 February 2015	

Delivered at:	Launceston	

Delivered on:	15 May 2015	

REPRESENTATION
Counsel for the Applicant:	Ms A Trezise on Day 1
Mr R Murray on Days 2 & 3	

Solicitors for the Applicant:	Andrea Trezise on Day 1
Murray & Associates on Days 2 & 3	

Counsel for the Respondent:	Ms C Gibson	

Solicitors for the Respondent:	Charmaine Gibson	

ORDERS
(1)	That within 30 days of this Order MR THOMAS (“the husband”) must transfer to MS NEWTON (“the wife”) all his right, title and interest in their jointly owned (omitted) boat and trailer.
(2)	That within 90 days of this Order the husband must pay to the wife the sum of forty thousand dollars ($40,000).
(3)	That in the event that any part of the sum of forty thousand dollars ($40,000) remains unpaid at the expiry of the 90 day period referred to in Order No. 2 hereof, the husband must forthwith do all such acts and things as are reasonably necessary to effect a sale of his property at Property O in Tasmania (“the husband’s home”) for the best price reasonably obtainable and any funds still owing to the wife pursuant to Order No. 2 hereof shall then be paid from the net proceeds of sale of the husband’s home before any of those net proceeds are paid to the husband.
(4)	That the parties have liberty to apply in relation to the implementation of Order No. 3 hereof.
(5)	That other than as is specifically provided for in these Orders the husband and the wife are each solely entitled to the exclusion of the other to all other property and chattels in the possession or control of each of the parties as at the date of these Orders.
(6)	That save as to costs and/or enforcement of these Orders, the wife’s Initiating Application filed 19 December 2013 and the husband’s Response filed 27 March 2014 are otherwise dismissed. 

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

(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Launceston	
LNC 667 of 2013
MS NEWTON	
Applicant

And

MR THOMAS	
Respondent

REASONS FOR JUDGMENT
1.	The applicant is MS NEWTON (“the wife”) and the respondent is MR THOMAS (“the husband”).  Their dispute is about what orders for property settlement should be made by the Court following the breakdown of their marriage.
The conduct of the hearing
2.	This matter was heard over three days.  I will refer to the days simply as: Day 1, Day 2 and Day 3.
3.	The wife’s legal representation changed between Day 1 and Day 2.  That arose because of an apparent conflict between the oral evidence given by the wife on Day 1 and an affidavit previously prepared by her lawyer and sworn by the husband on behalf of the wife in other proceedings in this Court.  In relation to that, I interrupted the cross-examination of the wife on Day 1 and said:
	Can I come in here?  I think we are getting into dangerous territory. … I think it’s a danger for this witness, and that is that it would appear that in some other proceedings in this court she has relied upon that as evidence in support of whatever she was after.  If she is now retracting that, it seems to me that, at best she negligently allowed the court to be misled in relation to that other matter or at worst she deliberately is allowing the court to be misled, either in relation to that matter or this matter.  
4.	I pointed out that it is an offence to deliberately mislead the Court and that the wife may need to be given some advice about whether she should answer the questions or not.  The hearing was then adjourned over the luncheon break. 
5.	After the luncheon break, the wife’s lawyer advised the court that she herself had taken legal advice over the break and had come to the conclusion that she needed to withdraw from the proceedings.  As a consequence, it was necessary to adjourn the proceedings for three weeks and when the matter resumed on Day 2, the wife had different legal representation.
6.	It would appear that on Day 1 the wife’s lawyer quite properly recognised that her duty to the Court was higher than the duty she owed to the wife as a client. That higher ethical duty was recently explained by Peter Cummings SC in a paper entitled “Ethical Standards for Family Lawyers”.  In that paper he said: 
	Inherent in the lawyer’s duty to the Court is a duty to the community through the lawyer’s high ethical standards and duty to uphold the law. This is a duty owed to society as a whole.
	This duty is seldom understood by clients, and in fact is an anathema to most.
The parties’ applications
7.	In her application filed 19 December 2013 the wife had originally been seeking an order that the husband pay her the sum of $220,000, on the basis that he would retain his home and a boat and trailer which the parties agree is worth $15,800.  However, in the Case Outline filed on behalf of the wife on 3 February 2015, the orders she sought were for the sale of the husband’s home and an equal division of the net proceeds, plus a transfer to the wife of the boat and trailer.  In his closing submissions on Day 3 the wife’s counsel appeared to concede that an order for a sale of the husband’s home would not be necessary if the husband could raise the required funds to pay the wife her entitlement.
8.	Both counsel agreed that the wife’s claim for a cash payment (i.e. in addition to a transfer of the boat and trailer worth $15,800) could be calculated at approximately $50,000.  However, the husband’s counsel stated that the cash component “should be a figure substantially less than that, perhaps half of that.” 
9.	It would therefore appear that the parties were approximately $25,000 apart in their respective positions by the conclusion of the hearing. 
Relevant Law
10.	Prior to the High Court decision in Stanford v Stanford, the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.  The steps were said to involve:
a)	Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)	Secondly, an evaluation of the contributions made by the parties as defined in section 79(4) of the Act;
c)	Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and
d)	Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsection 79(2).  
11.	However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
	37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
12.	In paragraph 40 of Stanford, their Honours went on to say:
	40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
13.	Subsection 79(2) provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order” 
14.	Subsection 79(4) provides:
	In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
	(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and 
	(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and 
	(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and 
	(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and 
	(e) the matters referred to in subsection 75(2) so far as they are relevant; and 
	(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and 
	(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
15.	In the majority judgment in Bevan & Bevan, Bryant CJ and Thackray J said:  
	The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus: 
	1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
	2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
	3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
16.	In this matter, both parties appear to accept that there needs to be a payment by the husband to the wife, however, they are not in agreement about how much he should pay to her.  Irrespective of the quantum, an order requiring the husband to make any payment to the wife will result in an alteration of the parties’ property interests pursuant to section 79 of the Act.  The same is true in relation to a transfer of the boat and trailer.  It follows that there must be an acceptance by both parties (but possibly with some reluctance on the husband’s part) that justice and equity dictates that an order should be made.   In this regard, I agree with what Thackray CJ of the Family Court of Western Australia said in Fielding & Nichol: 
	While I accept that a finding that it is just and equitable to make an order will always be required, in most cases the court will not need to discuss the s 79(2) issue, because the cases will be conducted on the basis of acceptance by the parties that it is just and equitable to make some form of adjustment.  In those cases, matters arising under s 79(4) will require discussion only when determining the way the adjustment is to be effected.   
17.	I have no difficulty in finding that it is it is just and equitable to make an order in this matter, so my main task is to determine the quantum of the payment that must be made by the husband to the wife.
Background
18.	Where I refer to facts in these Reasons, they should be regarded as findings of fact, unless a contrary intention is clear from the context, particularly when there is a dispute between the parties in relation to those facts.
19.	The wife is aged 46 years and the husband is nearly 53 years old.  They met in 2008 and started living together (omitted) 2009.  They got married in (omitted) 2012 and separated in August 2013.  The parties started living together when the wife and her three children from her former marriage (then aged 5, 7 and 9) moved from the wife’s home in (omitted) (“the wife’s home”) to the husband’s home in (omitted) (“the husband’s home”).
20.	When the parties started living together, the wife had the following assets:
•	The wife’s home which had an agreed value in June 2009 of $255,000.  
•	A (omitted) Ford motor vehicle, which she had purchased second-hand shortly before cohabitation for $6,000.
•	Superannuation, which had a value on 30 June 2009 of $105,908.
21.	The wife’s only significant liability at the start of cohabitation was the mortgage liability secured over her home, with a balance of approximately $110,000.  At that time, she was working on a casual basis and earning approximately $45,000 per annum.
22.	At the start of cohabitation in (omitted) 2009, the husband had the following assets:
•	The husband’s home, which the wife asserts was then worth $270,000, but the husband asserts was worth a minimum of $320,000 at that time.  (The differences in their assertions about the value of that property in June 2009 became a significant issue that requires me to assess the supporting evidence, and I will do so below.)  The total of three loans secured by mortgage over the husband’s home at that time was in the vicinity of $260,700. 
•	A one-quarter share in a rural property that the husband had purchased with three other gentlemen in equal shares in 2007 for $420,000 (“the farm”).  Consequently, the parties agreed that his share of the farm was worth $105,000.  However, his share of the mortgage liability was $60,000, so his equity was worth approximately $45,000.
•	A (omitted) Toyota (omitted) which he still retains and values at $5,000 in his Financial Statement.
•	A boat which was subsequently sold for $4,200.
23.	It is common ground that the husband’s home had been listed for sale with real estate agents at a price of $400,000 shortly before the parties started living together.  It did not sell and the parties agreed that it should be taken off the market and the wife and her children would move to the husband’s home.  The wife then let her home to tenants.  
24.	It is also common ground that the husband made some improvements to the wife’s home prior to their cohabitation.  However, I do not have any evidence about any increase in value attributed to those improvements.
25.	The parties earned very similar taxable incomes during their first year of living together.  However, as a result of changes in their employment, the wife’s income increased and the husband’s income reduced in subsequent years.  This was essentially because: 
•	the wife obtained more remunerative employment which she was able to do from home;  and
•	the husband was not formally employed for a period of approximately six months (January to July 2012) and he was then in casual employment.  
26.	The husband looked after the wife’s children when she was not available, and he also converted a storage shed into an office from which the wife could conduct her work.  Other improvements were made to the husband’s home, which included the installation of solar panels on the roof in order to reduce electricity costs.  The installation of those solar panels was funded by a loan obtained by the wife, which she subsequently repaid from an inheritance which is referred to below.
27.	In March 2013 the wife received an inheritance from the estate of her late father in the sum of $111,214.  She made the following significant payments from those inherited funds in April and May 2013:
•	$11,603 to repay credit card debts of the parties;
•	$15,010 to purchase her Mitsubishi motor vehicle;
•	$1,851 to purchase a machine used in her work;
•	$56,468 to fully repay one of the husband’s mortgage loans secured against the title to the husband’s home;
•	$12,100 to fully repay her personal loan for the solar panels; 
•	$10,010 to reduce the balance of another loan secured by a mortgage against the title to the husband’s home; and
•	$1983 to purchase a television, tablet computer and sideboard.
28.	As mentioned above, the parties separated in August 2013.
The valuation dispute
29.	As mentioned above, there was a dispute between the parties about the value of the husband’s home at the start of the parties’ cohabitation.
30.	The wife relied upon a retrospective valuation of the husband’s home that she had obtained and the value attributed to the husband’s home at 1 June 2009 in that valuation was $270,000 (“the retrospective valuation”).
31.	The husband was clearly not happy with that retrospective valuation, so he relied upon a copy of a valuation report that had been provided to his bank when he borrowed additional funds to enable him to complete improvements to his home (“the bank valuation”).  The value attributed to the husband’s home in the bank valuation in December 2008 was $320,000.
32.	The valuer who provided the retrospective valuation had provided recent valuations of the parties’ real estate on the joint instructions of the parties, and there is no dispute between the parties about those valuations.  However, the retrospective valuation was obtained on instructions from the wife and her lawyer without any input from the husband or his lawyer.  As can be seen from the paragraphs above, the difference in those valuations is $50,000 and the importance of that difference relates only to the value of the husband’s initial contributions (and not to the values of the assets accepted by the parties to be part of the current asset pool).
33.	The valuers who provided the bank valuation and the retrospective valuation are both Certified Practising Valuers and each gave oral evidence.  There was no real challenge to the expertise of either valuer and for convenience I shall refer to them as “the bank’s valuer” and “the wife’s valuer” respectively.
34.	Because the parties are unable to resolve their dispute in relation to the value of the husband’s home at the start of their cohabitation, it falls to me to decide that question.  However, I am not entitled to simply choose a valuation figure midway between the two valuations.  It is my responsibility to determine the issue on the whole of the material before me. 
35.	Having considered the evidence of both valuers, I conclude that the value of the husband’s home at the start of cohabitation (June 2009) was $320,000.  My reasons are as follows:
•	The valuation conducted by the bank’s valuer was almost contemporaneous with the start of cohabitation by the parties.  As a result, the bank’s valuer saw the property essentially as it was at that time, save that the husband completed some further improvements to the property (and in particular to the bathroom) in between the time that the property was valued by the bank’s valuer and when the parties started living together approximately 6 months later.  
•	On the other hand, the husband’s property was not inspected by the wife’s valuer until April 2014 (as part of his inspection for the purposes of a joint valuation at that time).
•	In his oral evidence, the bank’s valuer stated that his recollection was that the property market did neither plummet nor rise rapidly in 2009.
•	The wife’s valuer was instructed solely by the wife and her lawyer with no input from the husband or his lawyer.  Indeed, it became clear that the wife herself had direct contact with the valuer and provided him with information and photographs that are not referred to in his retrospective valuation report.
•	To his credit, the wife’s valuer did acknowledge that “with the benefit of hindsight the valuer may have a different perspective on market and economic conditions and future trends than that which was prevailing as at the respective date of valuation” and “physical characteristics of both the subject property and property is used as comparable sales evidence by the valuer may have changed” so “there is likely to be a greater degree of possible ‘margin of error’ in relation to retrospective valuations”.
•	I found that the wife’s valuer was unnecessarily critical of the bank valuation.  For example, he criticised the bank valuer’s risk analysis for no apparent reason, other than to be critical.  It was only when I asked him whether that risk analysis affected the value of the property that he conceded that it did not and was therefore irrelevant to what I had to determine.  He was also critical of the bank’s valuer for using two properties for comparison that were “under contract - subject to confirmation” but he had not checked whether the sales of those two properties were confirmed or not.
•	In my view, the wife’s valuer placed too much emphasis on the date that the husband’s home was originally constructed rather than its condition in 2009.  In that regard, I prefer the opinion of the bank’s valuer that “the condition or state of repair of this property is more important than the date [it was] constructed”.
36.	In summary, the bank’s valuer inspected the property at a time much closer to the relevant date and he saw the condition of the property at that time.  In addition, he was valuing the property for security purposes for the bank and, as a result, he had no “axe to grind” on behalf of either of the parties in this matter.
37.	I consider it appropriate to accept a value of $320,000 for the husband’s property at the start of the parties’ cohabitation, notwithstanding that the husband completed some further renovations after December 2008.
The asset pools
38.	In their case outlines, the lawyers for the parties appeared to be in agreement that the Court should adopt a “two pools approach” to the assets – one for superannuation and another for the other assets.  That approach is in line with the majority decision in C & C.
39.	The superannuation pool comprises the wife’s superannuation at $179,119 and the husband’s superannuation at $57,942.  The total is $237,061, so the wife retains 76% and the husband retains 24% of that total.
40.	The non-superannuation asset pool that I propose to adopt is as follows:
Asset	Owner	$ Value	
Husband’s home	Husband	285,000	
Husband’s share of the farm	Husband	87,500	
Husband’s bank accounts	Husband	2,929	
Toyota (omitted)	Husband	5,000	
Wife’s home	Wife	240,000	
Mitsubishi (omitted)	Wife	30,595	
Wife’s bank accounts	Wife	795	
Joint bank account	Joint	1,384	
(omitted) boat & trailer	Joint	15,800	
Total		$669,003	

41.	The relevant liabilities of the parties are as follows:
Liability	$ Amount	
Husband’s home mortgages	183,186	
Husband’s share of the farm mortgage	54,015	
Husband’s VisaCard	9,599	
Wife’s home mortgage	193,203	
Wife's Mitsubishi (omitted) loan	22,150	
Total	$462,153	

42.	I have deliberately not included the following liabilities in the table above:
•	A MasterCard liability of $66 - because that amount is so small that the maxim de minimus non curat lex should be applied.
•	A sum of $8,294 borrowed by the wife to pay legal costs for these proceedings - because the husband’s legal costs are not included in the table above either. 
43.	The Case Outline filed on behalf of the wife prior to Day 1 stated that she sought “to have added back to the property pool withdrawals made by the husband from his … mortgages between the period August to October 2013 totalling $21,700.00 …”.  However, on Day 3 the wife’s counsel did not really press that issue in his closing submissions.  
44.	It seems to me that the concept of “adding back notional property” was always somewhat risky.  As long ago as 1998, the Full Court of the Family Court in C & C stated:  
	Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. 
45.	I also note that Faulks DCJ in Mayne & Mayne said:
	By definition it would seem that property which has been spent when the matter is before Court is no longer there and is not property. 
46.	Following the High Court decision in Stanford it would now appear that such a concept is even more risky.  In Bevan & Bevan the majority of the Full Court of the Family Court considered Stanford and made these comments:
	We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79.  It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage - and potentially an important part.  As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
47.	In any event, I note that the husband gave a reasonable explanation for his withdrawals from his mortgage account immediately after separation.  When he was asked what he did with the money during cross-examination, his answer was: 
	It’s quite easy, sir.  I had to live.  I was working part-time when she left.  I had to buy a few things for the house to get it back into liveable order.  I was travelling to (omitted), losing $300 a week on wages, as I had no choice but to stay in the job to pay the mortgage plus legal fees and $390 a week in mortgages.
48.	When he was pressed further, he added:  
	… I took steps so that I could cover my mortgage for the next 12 months, otherwise I would have lost my house.
49.	It seems to me that even before Stanford and Bevan were decided it would have been inappropriate to add back into the property pool the money withdrawn from the husband’s mortgage account. In this regard, in M & M their Honours Baker, Kay and Chisholm JJ said this about the earlier “add-back principle”:
	There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses.  Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements.  Parties are entitled to continue to provide for their own support.  Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. 
50.	In the circumstance, it is not appropriate to add $21,700 back into the pool of assets.
Contributions
51.	It should be remembered that in most cases the assessment of contributions is not an exercise of mathematical precision.  In Clives & Clives the Full Court said: 
	We accept that the task to be undertaken by a trial Judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise 
52.	Similar statements were made in Hayne & Hayne,Garrett & Garrett, Kessey & Kessey, and Poulos & Poulos and it is clear that any evaluation of the weight to be attributed to different types of contributions - such as direct financial contributions and indirect non-financial contributions - cannot possibly be a science involving precise measurement.  
53.	At the start of cohabitation the wife’s net equity in her home was $145,000, whereas the husband’s net equity in his home and the farm was $104,300.  The combined net equity in those three properties was $249,300, so on those figures the wife “contributed” 58% of the total and the husband contributed 42%.  However, the husband had made improvements to the wife’s home before the parties started living together so it is likely that he had contributed to the improved value of the wife’s home.  He had been paid a nominal amount by her as compensation because he was not otherwise in paid employment while he was effecting those improvements.  Notwithstanding that, it is apparent that the wife’s initial contributions in terms of equity in real estate were moderately greater than those of the husband.
54.	In coming to my conclusion in relation to initial contributions as set out in the paragraph immediately above, I have deliberately excluded motor vehicles and other chattels because no proper valuations were provided and some of those assets have been disposed of.
55.	I was also not provided with any reasonable detail about the value of the husband’s superannuation at the start of cohabitation.  However, it is clear that the wife’s superannuation interests at that time were worth more than those of the husband.  
56.	I am satisfied that after the initial contributions referred to above, the parties’ contributions during cohabitation were equal up until the time that the wife received her inheritance of $111,214 at the end of March 2013.  Indeed, a general equality of contributions between the initial contributions and the receipt of her inheritance appears to have been accepted by the wife.  In her opening remarks on Day 1 the wife’s counsel said this:
	My client’s position is that whilst her income was greater than the husband’s, it’s her position that overall there was an equal contribution … other than the specifics I’ve spoken about; contributions at the commencement of the relationship and the inherited funds…
57.	In his closing submissions on Day 3, her counsel was clearly still following the same line when he said:
	In summary:  short relationship.  On applicant’s case; greater contributions by her initially.  At least equal contributions during the relationship, save for the significance of the inheritance, which in my submission is somewhat overriding.
58.	In some respects, the factual situation in this case is similar to that in Fielding & Nichol, in that the parties will retain the real estate that they each brought into the relationship.  However, it is clear that the disposition of wife’s inherited funds is the “game changer” in this matter.  I have referred to that disposition at paragraph 27 above and it is quite clear that while the wife was a beneficiary from her late father’s estate, the husband has been a significant beneficiary from the manner in which the wife disposed of the inheritance that she received only months before the parties’ marriage broke down irretrievably. I will refer to this further below.
Subsection 75(2) factors
59.	The wife is 46 years old and she is employed in a relatively specialised field.  Her income from that employment is approximately $110,000 per annum.
60.	The wife has three children who move between the wife’s household and that of their father on a week and week about basis.  Consequently, it is reasonable to infer that the wife is equally responsible with the children’s father for the costs of supporting the three children.  The wife is not responsible for supporting any other person.
61.	The husband is nearly 53 years old and he is employed full-time by a (employer omitted).  His income from that employment slightly exceeds $52,000 per annum.  His interest in the farm business appears to be negatively geared.
62.	The husband does not support any other person financially.
63.	On the face of it, the subsection 75(2) factors favour the husband marginally, primarily because the wife has a significantly greater income than the husband.
Discussion
64.	As I said above, it is how the wife disposed of her inheritance that is the “game changer” in this matter.  Only a short time before the parties separated, she made some significant payments that will now benefit the husband.  That is primarily the factor that makes it just and equitable for the husband to be ordered to make a payment to her.
65.	In April 2013 the wife repaid $12,100 to discharge her personal loan in relation to the solar panels that are still at the husband’s home.  However, it is very clear from the evidence of the wife’s valuer that the expenditure of more than $12,000 in relation to those solar panels has not resulted in a matching improvement in the value of the property.  When he was asked about how much the solar panels had added to the value of the husband’s home, he said:
	Somewhere between, perhaps, two and four thousand dollars.  What needs to be kept in mind is that cost doesn’t equate with value, particularly when it comes to properties. 
66.	At around the same time, the wife also paid a total of $66,478 off the husband’s mortgage liability in relation to his home.  Clearly, he will continue to benefit from that reduction in his debts.   
67.	If I was deciding this matter solely on the basis of how the husband has benefitted from the manner in which the wife spent her inheritance, I would have little hesitation in ordering that she be paid the $50,000 that she is seeking.  However, I need also to take the following into account:
•	The wife will also retain a significantly larger superannuation interest.  Although that is essentially a product of her higher income, I have concluded that the parties contributed equally during their period of cohabitation up until the wife received her inheritance.
•	The wife will retain the boat and trailer at an agreed value of $15,800.  That is a significant asset that came into the asset pool in 2010 and it appears to be unencumbered.  
•	As stated above, the subsection 75(2) factors marginally favour the husband. 
Conclusions
68.	When I take all the matters set out above into account, I conclude that it is just and equitable for the husband to pay the wife $40,000 and transfer his interest in the boat and trailer to her.
69.	The husband will need to raise the necessary funds to pay the wife her entitlement, so I will allow ninety days for that to occur.  If he is unable to pay her that $40,000 in ninety days, his home will have to be sold in order to pay the wife’s entitlement.
70.	The orders that I make are set out at the start of these Reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Roberts

Associate: 

Date:  15 May 15