DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks relief pursuant to Part 19 Property Law Act 1974 for a property adjustment order (at 80% of the value of the divisible assets currently available).

2. [2]
   She also seeks alternative relief for a declaratory order (constructive trust), namely that the respondent holds on trust for her, an amount assessed at 80% of the value of the divisible assets currently available.

3. [3]
   As her claim is ‘out of time’, the applicant is also seeking this court’s leave to proceed.

Background

4. [4]
   The applicant, LN, and the respondent, PN, were born 7^th December 1952 and 11^th August 1949 respectively.

5. [5]
   The applicant commenced living in a de-facto relationship with the respondent, sometime in 1974. They remained in that relationship for nearly 26 years. They finally separated on the 26^th February 2000.

6. [6]
   During the time they were together, the applicant and the respondent raised a family. Three of those children were from the applicant’s previous marriage. The fourth child however was their own, SN, born 21^st May 1978.

7. [7]
   At the commencement of their relationship, the parties owned very few assets though the respondent did have some equity in a New Zealand home which was subsequently utilised for the family’s benefit.

8. [8]
   Over the course of their relationship, the respondent was the primary bread winner for the family while the applicant essentially remained at home as the primary caregiver and homemaker. The applicant provided some assistance to the respondent with his businesses over the years by helping him out with the bookwork at the end of each year. That help only stopped after the parties finally separated. The applicant had also during that time obtained employment at various jobs. Most of those jobs however were not long term.

9. [9]
   In about 1989, as a result of being a spina bifida sufferer, LN started to experience problems with her legs. She subsequently qualified for a disability pension in January 1991. The applicant continued to obtain some employment even after this time but for short periods. Unfortunately, her condition got progressively worse and by 1998 she was finding it difficult to get around. She was required to use a battery operated scooter for mobility after that time. At the date of the hearing, she attended in a wheel chair to assist her mobility. At about mid 1999, the parties agreed to separate however they reconciled later that year. They then continued to live together as a de-facto couple until they finally separated on 26^th February 2000.

10. [10]
    After separation, the applicant remained living at the matrimonial home (‘Crown Road property’ which had been purchased in 1987) for approximately 3 years. The respondent continued to meet all of the outgoings except for the rates which the applicant had agreed she would pay.

11. [11]
    The applicant eventually vacated the home in April 2003. The house had been placed put up for sale some months before that date but the house had not sold. At around the time the applicant vacated the home, the respondent paid her the sum of $100,000. The applicant then transferred her interest in the Crown Road property to the respondent at that time. The respondent had obtained the money which he gave the applicant by refinancing the Crown Rd property. (exhibit 1). The applicant then used the money she received from him towards the purchase of a mobile home. Certain alterations were made to the mobile home to cater for her disability. She currently remains living at that home. The Crown Rd property, on the other hand, remains rented to tenants.

The Issues

1. Should leave to proceed be given in respect of the applicant’s claim (as amended) seeking relief pursuant to Part 19 of the Property Law Act 1974?

2. If leave to proceed is given, what, if any, property adjustment order should be made in accordance with the provisions of the Property Law Act 1974?

3. If leave to proceed is not given, has the applicant established that a declaratory order in the terms of a constructive trust should be made in any event?

12. [12]
    Helpful outline of submissions have been received by this court from Counsel, which have now been marked as exhibits.

Issue 1 – Time limit for making application

13. [13]
    s. 288 of the Property Law Act 1974 provides:

288 Time limit for making application

1. (1)
   A court may make a property adjustment order only if—

1. (a)
   the application was made within 2 years after the day on which  the de facto relationship ended; or

1. (b)
   the court has given the applicant leave to apply.

1. (2)
   The court may give leave only if it is satisfied hardship would result to the applicant or child of the de facto partners if leave were not given.

14. [14]
    By her claim filed 29^th June 2004, the applicant seeks this court’s leave to proceed. As provided for in s. 288 of the Act, before leave may be granted, this court must be satisfied that hardship would result to the applicant if leave were not given.

15. [15]
    Counsel for the respondent argues that the applicant has failed in her material to show that there is, or will be, hardship suffered if leave was not given. Counsel for the applicant however argues that hardship has been demonstrated once the court has regard to certain factors namely the applicant’s severe disability, her age, immobility, her impecunious circumstances, lack of support and any loss of entitlement to make her claim if leave is not granted.

16. [16]
    I am satisfied that leave ought to be granted in all the circumstances of this case particularly when consideration is given to the factors raised on behalf of the applicant on this issue.

17. [17]
    The applicant’s statements of financial circumstances filed by the applicant in this court together with the medical evidence available (exhibit 2 and more recently the report from Dr Patel, General Practitioner dated 8^th January 2007) supports the submission made by counsel for the applicant that hardship will result if leave is not given.

18. [18]
    Counsel for the respondent also submits that no hardship would result to the applicant even if leave to proceed was not granted as she does not have any further entitlement at this point in light of the agreement which was entered into between the parties at the time of their separation and the subsequent payment of $100,000 which was paid to her by the respondent in April 2003 by way of full and final property settlement.

19. [19]
    I cannot accept that submission. The following matters are relevant:

• any agreement which was said to have been entered into between the parties by way of a full and final ‘property settlement’ has not been reduced to writing to that effect nor in accordance with the Property Law Act 1974 which provides for such agreements and as such, is not binding upon this court;
• both parties are in dispute in any event regarding the exact terms of any said agreement and its’ effect.
• any said agreement did not, in any event, account for all of the divisible assets, resources and liabilities of the parties available or relevant at the material time (as evidenced by the respondent’s own pleadings).
• Finally, this court is entitled to take into account all relevant matters when determining whether any said agreement made between the parties in respect of any ‘property settlement’ was just and equitable in all the circumstances.

20. [20]
    Accordingly, leave to proceed out of time is granted.

Issue 2 – What, if any, property adjustment order should be made?

21. [21]
    It is appropriate at this point then to now deal with the question of any said agreement and the subsequent payment which was made to the applicant in April 2003 of $100,000.

22. [22]
    The respondent argues that as a result of the agreement being given effect by the payment which was made to the applicant in April 2003, it follows that the parties had agreed, at that time, on a distribution of all their property and therefore the applicant’s does not have any further entitlement at this stage.

The evidence available on this issue

The respondent

23. [23]
    In the respondent’s affidavit filed 22^nd December 2006 at pages 10 and 11, he describes what he understood to be the agreement as between the parties at the time of separation. He states that the parties had agreed that the applicant would remain at the Crown Rd property until such time as she obtained for herself alternate accommodation and employment. He further states that because she was ill at the time he felt it was in her best interests to remain in the home until she found somewhere else. It was agreed that he would continue to meet the outgoings on the home while the applicant would assist with meeting the rates. The respondent states that both parties had discussions about her vacating the home between separation and early 2003 and that he had advised the applicant that the home needed to be sold because he could no longer afford to maintain the home. He states that eventually in late 2002 he decided that he could not afford the property and therefore took steps to place the property on the market. After the property was on the market for some time, it was only then that the respondent says that the applicant told him that she wished to settle all of their property matters and that she wanted $100,000 and all the furniture in the home.

24. [24]
    The respondent says that the agreement then was that he was to retain his assets, including the business, pay to the applicant the $100,000, give her the furniture in the home and as a result, he would not seek any payments from her for the time that she had resided in the home by herself since separation.

25. [25]
    At hearing however, the respondent told the court that the reason behind the house being put on the market for sale was because the applicant had been complaining to him that she did not want to live there any longer as the home required too much upkeep, she could not manage it and that she wanted a unit of her own (T77 L15 – 25). This evidence does not sit well however with the respondent’s own affidavit evidence where he says that he had only agreed to the applicant staying there after separation until she found somewhere else, that he was the one who had been the one who had insisted the house be put on the market to be sold because he was unable to afford to continue to maintain the home.

26. [26]
    Nor does the document which was signed by both parties (annexure “PN10” of respondent’s affidavit filed 22^nd December 2006) reflect the terms of the agreement which the respondent says had been agreed between the parties as full and final settlement of all of their property matters at the point the $100,000 was paid.

The applicant

27. [27]
    In her affidavit filed 28^th June 2004 at page 4, the applicant states that at the time of separation, the respondent had agreed that she could remain in the Crown Rd property as long as she was financially responsible for any maintenance and repairs. That arrangement remained in place until October 2002, at which time the respondent told her that he was not prepared to continue with their arrangement and that he wanted the house put on the market to be sold. She states that at the time she was unwell, did not realise she had rights as a de-facto partner to a property settlement and believed ‘she was lucky to get what I was given’, namely the $100,000 in April 2003. She states that she then used that money to purchase herself a mobile home with alterations to cater for her disability.

28. [28]
    During the hearing the applicant stated however that she had wanted the house sold in 2000 but that it was the respondent who had wanted her to stay in the house and that she had agreed to that arrangement as she would be able to remain secure in her own home.

Findings on this issue

29. [29]
    While the evidence from both parties at hearing was somewhat vague, which is understandable considering the passage of time, regarding their respective recollections of any agreement which was said to be reached between them at time of separation (and subsequently when the payment was made), I am satisfied that even though a payment of $100,000 was made to the applicant in 2003, that payment did not, in itself, amount to a full and final property settlement as such between the parties at that time in respect of all of their property.

30. [30]
    I accept the evidence of the applicant when she says that she only took the $100,000 at that time as she did not appreciate that she may have been entitled to more under Part 19 of the Property Law Act 1974 even though she accepted at hearing that she had taken that payment in respect of at least one of their joint assets namely the Crown Rd property. (T30 L 20 – end). I accept the applicant’s evidence however when she says that the arrangement which had been in place since separation only came to an end after the respondent told her in October 2002 that he wanted the property put on the market (and would as a consequence, be required to leave the home) and had taken the payment ‘because she believed that she was lucky to get what she was given’ at that point.

31. [31]
    I accept the applicant’s evidence when she also says that she had only ‘signed herself off the family business’ (at a time unknown, given the state of the evidence given at hearing) because that step was necessary if she wanted to receive a disability pension from the government.

32. [32]
    It follows from the findings I have just made, that I prefer the evidence of the applicant where it is in direct conflict with that of the respondent’s on this issue.

33. [33]
    As quite properly conceded by counsel for the respondent, the appropriate course to adopt in proceedings such as these generally, is the approach which the Family Court takes in respect of s. 79 proceedings, namely that the appropriate date for any assessment of property should be at the date of trial, unless special circumstances can be demonstrated.

34. [34]
    I am not satisfied that special circumstances have been demonstrated by the respondent in this case which would warrant this court assessing the parties’ property as that which the parties held at the time the payment of $100,000 was made in April 2003.

35. [35]
    Even if I am wrong in respect of the appropriate date for any assessment, I do not consider in any event that the payment of $100,000 which was paid to the applicant in April 2003 was a just and equitable amount by way of any full and final property settlement when taking into account all the circumstances at that time.

36. [36]
    The divisible assets available in 2003 included the Crown Rd property valued at $220,000 (with had a mortgage of approximately $22,000) and its’ furniture, the husband’s business and cars/car parts of that business, the latter of which has not, on the evidence available, changed substantially in its’ value it seems to that which was given at this hearing.

37. [37]
    The evidence also given at hearing supports the conclusion that the payment made at that time to the applicant did not, in my view, reflect the entitlement which the applicant may have received had the whole of their assets, financial resources, liabilities and other relevant matters required to be considered been taken into account at that time.

38. [38]
    For example, in April 2003, the respondent was living with his current de-facto partner H at her home. The respondent gave evidence generally that H had been helping him out financially during their co-habitation. The applicant, on the other hand, has had no such assistance afforded to her at that time. The applicant had also suffered a stroke in early 2003 (exhibit 2) which had impacted upon her health and well being generally, a factor also relevant for consideration. Fortunately, the respondent had remained in good health at that time.

The applicable legal principles under the Property Law Act 1974

39. [39]
    s. 286 of the Property Law Act 1974 provides that the court must only make an order which it considers to be just and equitable.

40. [40]
    In determining what order if any should be made, the court will ordinarily follow a process of enquiry laid down by the Full Court in Hickey (2003) FLC 93-143. These principles have been helpfully summarised by Justice Keane in FO v HAF (2006) QCA 355.

41. [41]
    That approach involves a four step process:

Step 1. An identification and valuation of the property, resources and liabilities of the parties;

Step 2. the identification and assessment of the contributions of the parties to their pool of assets and a determination of their contribution based entitlements in accordance with sections 291 – 295 of the Act;

Step 3. the identification and assessment of the factors in sections 297 – 309 of the Act; and

Step 4. A consideration of these earlier steps to determine whether any end result is just and equitable in accordance with section 286 of the Act.

42. [42]
    It is therefore appropriate to adopt this four step approach in respect of this case.

Step 1. Identification and valuation of the property, resources and liabilities of the parties.

43. [43]
    The assets, resources and liabilities relevant to this case which I have determined, as at the date of hearing, may be summarised as follows:

Assets:

1. Crown Rd property $300,000
2. Respondent’s business……………………………………….……………………………$4.800
3. Respondent’s cars/car parts………………………………….…………………………$40,209
4. Respondent’s entitlement (if any) in Bacton Rd property…...…………u/k value
5. Respondent’s bank account………………………………….……………………………$2,800
6. Respondent’s F100 motor vehicle…………………………………………………………$800
7. Respondent’s furniture……………………………………….…………………………………$nil
8. Applicant’s furniture……………………………………………………………………………$nil
9. Applicant’s mobile home…………………………………….…………………………$70,000
10. Wife’s motor vehicle…………………………………………………………………………$500

TOTAL $419,109

Liabilities:

1. Mortgage over Crown Rd property………………………….……………………$175,000
2. Debts outstanding (applicant’s)……………………………...…………………….u/k value

BALANCE $244,109

44. [44]
    In arriving at these conclusions, the following matters have been taken into account:

Assets:

Re 1.

45. [45]
    The valuation of the Crown Rd property at $300,000 is uncontested between the parties.

Re 2.

46. [46]
    The valuation attached by Mr Kelly, Chartered Accountant, called on behalf of the respondent was $4,800. The applicant’s estimate of the respondent’s business ‘worth’ however was $20,000 however it is properly conceded by counsel for the applicant that the figure given by LN was her best guess. As such, I have no reason to doubt Mr Kelly’s valuation notwithstanding that his valuation has been based upon the information he had gathered from the respondent’s relevant taxation returns.

47. [47]
    Counsel for the applicant submits that the level of the respondent’s reported income over certain years was questionable particularly when viewed against his stated expenditure over the same period. That submission ignores however the fact that many of the items of expenditure stated in the respondent’s statement of financial circumstances (filed by leave during hearing) were tax deductible and as such, were business expenses.

Re 3.

48. [48]
    The respondent gave oral evidence estimating a value which he attached to each of the cars or car parts referred to in the applicant’s material. The applicant also gave evidence estimating what she considered to be was the value of each of those items. It was quite properly conceded by her counsel that her estimate was only ‘her best guess’ as no proper valuation had been obtained.

49. [49]
    Although the evidence given on this issue was less than satisfactory, I am inclined to accept the values given to these items by the respondent. The respondent gave evidence, which was not contested, that he was the person who had actively restored these cars. It was also not contested that he was also the person with the necessary skills to carry out certain restoration activities as part of the business generally. As no true valuation was obtained in respect of these cars or ‘car parts’, I have assessed these items as follows, based on the evidence available given by the respondent at hearing: (T43 – 52):-

1937 roadster $2,500; red 1928 ford roadster $5,000; black 1928 ford roadster $5,000; 1937 ford ute $4,000; 1938 white V8 chevy coupe $22,000, 1928 model A ford body panels $800; flathead V8 motor $909.  Total $40,209.

Re 4.

50. [50]
    It was properly conceded by counsel for the applicant that this item should not be viewed as a divisible asset as such, but rather as a ‘financial resource’, which may be available at some time in the future to the respondent should the situation arise.

51. [51]
    The ‘Bacton Rd property’ belongs to the respondent’s recently estranged de-facto partner H. The respondent gave evidence during the hearing that he had recently become estranged from H as a result of the proceedings dragging on for so long which had in turn put a strain on their relationship. Prior to moving out of Bacton Rd (owned solely by H) some 3 months before this hearing, the respondent had lived with her on a genuine basis in a de-facto relationship for approximately 6 years.

52. [52]
    He stated he had recently moved out because things had become tenuous between them.

53. [53]
    He admitted under cross examination that he had contributed to the Bacton Rd home by ‘helping H around the house during the period he had resided there’ and that he had been living (financially) with her assistance (particularly so since these proceedings commenced). The respondent however disavowed the suggestion that he might make a de-facto property claim against H if they were to remain permanently estranged.

54. [54]
    While the submission made by counsel on behalf of the applicant has merit insofar as the respondent has in law an entitlement to make a claim for de-facto property settlement against his de-facto H if the situation ever arises, it is difficult in my view to attach any true value to such an entitlement at this point particularly where such an entitlement may never arise or even if it did, to what degree the respondent might benefit as a result.

55. [55]
    Accordingly, I am unable to attach any true significance to this item in all the circumstances, even though I accept that such as entitlement may be viewed as a ‘financial resource’ in these type of proceedings generally.

Re 5, 6 and 10.

56. [56]
    I accept the evidence given by the parties regarding the true value which they have attached to these items.

Re 9.

57. [57]
    I have assessed this item at $70,000 based on the applicant’s own statement of financial circumstances which values this item at $70,000 even though I accept her evidence that she may have spent approximately $30,000 causing alterations to be made to it to accommodate her own special needs. The mobile home, even with alterations however, is not an asset with any true appreciable qualities (other than perhaps to another purchaser that might benefit from the particular alterations which have been made). As such, I am not persuaded that this asset has increased in value since its purchase in 2003, particularly when no valuation evidence has been provided to assist me to conclude otherwise.

Liabilities

Re 1.

58. [58]
    The uncontested mortgage remaining on the Crown Rd property at the date of hearing is $175,000. That figure reflects the monetary sums which each of the parties received at the time the property’s mortgage was refinanced on the 14^th April 2003 (exhibit 1), namely $100,000 which the applicant received, and $41,542 which the respondent received which was reinvested unsuccessfully by him back into the family business. (See T72 L 20- T73 L5; T77 L 5 – T79 L15).

Re 2.

59. [59]
    The applicant gave evidence that about $10,000 was attributable to money she had borrowed from family to assist her over the years.

60. [60]
    After a careful consideration of whole of the evidence which the applicant gave on this issue, I am not persuaded that the figure she has nominated as ‘debts or loans outstanding’ to family is the true situation. The applicant gave evidence that certain family members had supported her and helped her over the years by giving her money when she needed it (for example, her sister who would give her ‘$10 here, $20 there’). The applicant also admitted that none of her relatives have asked her for the money back which they had given her and that most of the money given to her was put towards legal fees in any event.

Step 2. The identification and assessment of the contributions of the parties to their pool of assets in accordance with s. 291 -295 of the Property Law Act 1974.

s. 291 Contribution to property or financial resources

Prior to separation - Property

61. [61]
    It is clear on the evidence available that it was the respondent who has made the majority of the direct financial contributions to the relationship. He contributed his wages towards the mortgage of the jointly owned home and towards the benefit of the family as a whole. The applicant, on the hand, has also contributed in her role as the primary homemaker and in part, as the bookkeeper for the family business prior to separation. She also earned her own money during the course of the relationship from her own employment opportunities which I accept was used towards the benefit of the family.

62. [62]
    Accordingly, I find that the parties have contributed equally.

Post separation - Property

63. [63]
    The applicant enjoyed the benefit of the Crown Rd property (rent free) for a period of some years after separation though she did pay some rates. The respondent on the other hand continued to meet the mortgage payments on the home and continues to do so even though it is accepted that he has received rental income from the property since it has been rented.

64. [64]
    I accept the respondent’s evidence that he has and continues to maintain the upkeep of this property.

65. [65]
    Accordingly, I find that the respondent has continued to contribute financially more than the applicant has towards the Crown Rd property since separation.

Financial Resources

66. [66]
    The family business is available to the respondent currently as a financial resource although it is accepted that the business only runs at a small profit each year. The applicant is in receipt of a pension and it would appear from the evidence available, that this pension is income tested in view of the evidence given by the applicant at hearing on this issue.

67. [67]
    The respondent also owns the Crown Rd property (currently valued at $300,000, mortgage $175,000) which is currently rented in order that he may meet the mortgage repayments. The applicant, on the other hand, lives in her mobile home (currently valued by her at $70,000) which will more than likely continue to depreciate in its’ value in the future.

68. [68]
    It was submitted by counsel for the applicant that the respondent’s entitlement to a claim as a de-facto partner under the Property Law Act 1974 (against his current de-facto partner H) should be viewed as a financial resource.  As I have already indicated, the weight that I can attach to that submission has already been addressed.

s. 292 Contributions to family welfare

69. [69]
    The evidence demonstrates that both parties were actively involved in the raising of family which consisted of 4 children. However, it is also conceded quite properly by counsel for the respondent that the primary homemaker was the applicant.

70. [70]
    I find however that each of the parties has contributed towards the family unit and its’ collective welfare over the duration of the relationship.

s. 293 Effect on future earning capacity

71. [71]
    Any order which this court may make, will not, in my view, have any effect on the respective parties’ future earning capacity as both parties have and are able to continue to work it seems, if they choose. Both parties have been able to obtain employment in the past.

72. [72]
    The respondent is a qualified mechanic which equips him with a skill on the open labour market. The applicant also has skills in bookkeeping which will provide her with work opportunities, as it has done in the past, even notwithstanding her disabilities (for example see exhibit 2). It is however accepted that her ability to ‘sell’ her skills on the open labour market will clearly be less than that of the respondents’.

s. 294 Child support and s. 295 Other orders.

n/a

Step 3. The identification and assessment of the factors in s. 297 – 309 of the Property Law Act 1974

s. 297 Age and health

73. [73]
    The respondent is currently 57 years of age and is evidently in good health. The applicant, on the other hand, is 54 years old, she is disabled because she suffers from spina bifida, also requires the use of a wheelchair to assist her with her mobility (in addition to a walking frame). She has also experienced health problems. She suffered a stroke in early 2003 which clearly had an impact upon her general wellbeing and quality of life. The limited medical evidence available supports these conclusions (exhibit 2 and annexure “G” of affidavit of LN sworn 8^th January 2006 (sic) 2007).

74. [74]
    However, the medical evidence available does not allow me to conclude, even taking into account her current health status, that the applicant will not be able to find employment at all in the future. The limited medical evidence available does not support the conclusion that she has ‘little prospects of employment at all’ nor does it tell me to what degree or to what extent her current status of health will affect her in the future generally.

s. 298 Resources and employment capacity

75. [75]
    I have already dealt with the respective parties’ employment capacity and the respective resources available to the applicant and the respondent.

s. 299 Caring for children;

n/a

s. 300 Necessary commitments

76. [76]
    The respondent has commitments in meeting the mortgage payments on the Crown Rd property and outgoings associated with his business.

77. [77]
    The applicant, on the other hand, is in receipt of a disability pension out of which she meets the costs associated with her mobile home. She also uses that money to provide support for herself. While the applicant says she has relied on her family for support in the past, it is clear on the evidence given by both parties during hearing that their respective financial positions have become ‘strained’ as a result of the drain which these legal proceedings has caused on their respective financial resources since this matter was on foot.

s. 301 Responsibility to support others.

n/a

s. 302 Government assistance

78. [78]
    The applicant gave evidence during hearing, which I accept, that her pension was ‘income tested’. I accept the submission made by counsel for the respondent that there was however no other independent evidence put before the court on this issue.

s. 303 Appropriate standard of living

79. [79]
    The applicant currently resides in a mobile home in a caravan park. The respondent, on the other hand, currently resides at his place of business after his relationship recently became strained with his current de-facto partner H about 3 months ago.

s. 304 Contributions to income and earning capacity

80. [80]
    The applicant has made contribution to the respondent’s income and earning capacity namely the contribution which she made as homemaker and bookkeeper in his various businesses.

81. [81]
    The respondent has contributed to his own earning capacity by his own efforts and through borrowings which has enabled him to conduct his own business. For example, the respondent borrowed approximately $41,000 (against the Crown Rd property) in April 2003 (exhibit 1) after he re-financed that property which subsequently he put back into the business (unsuccessfully).

s. 305 Length of the relationship

82. [82]
    The relationship was a lengthy one of nearly 26 years.

s. 306 Effect of relationship on earning capacity

83. [83]
    The evidence supports the conclusion that the applicant’s earning capacity has in part been affected by her health over the course of the relationship and in part, as a result of her primary role as homemaker during that time.

s. 307 Financial circumstances of cohabitation

n/a.

84. [84]
    I accept the respondent is currently estranged from his de-facto partner H and has been for over a period of 3 months prior to hearing, been living at his business premises. The respondent gave evidence however that he had been receiving financial assistance from H in the order of approximately $200 per week since these proceedings have been on foot .(T94 L 1 – T95 L 10) but says that his relationship with H still remains uncertain at this point in respect of their future together. (T74 L20)

s. 308 Child maintenance

n/a

s. 309 Other facts and circumstances

85. [85]
    Counsel for the respondent submits that no further distribution ought to be made to the applicant at this time because she has already received her just and equitable entitlement already, namely the payment of $100,000 in April 2003.

86. [86]
    Counsel for the applicant, on the other hand, submits that further distribution ought to be made to the applicant at this time (namely 80% of the current pool of divisible assets) because she has not received her proper entitlement. It was properly conceded by counsel however that the payment which she did receive in April 2003 should still be taken into account when calculating what final order ought to be made that is just and equitable in all the circumstances.

87. [87]
    Counsel for the applicant submitted however that only $70,000 of the $100,000 should be taken into account as money which the applicant currently has the benefit of because the respondent had also benefited from the refinancing of the Crown Rd property in April 2003 in that the respondent had also received $41,542 at that time (exhibit 1) which he then put back unsuccessfully into the business. I accept that submission.

Step 4. A consideration of the result of the earlier 3 steps to determine whether the result is just and equitable in accordance with s. 286 of the Property Law Act 1974.

88. [88]
    Doing the best I can, and taking into account all the relevant matters, I have come to the conclusion that a fair and equitable distribution of the pool of assets now available ($244,109) should be assessed at 55% in the applicant’s favour. It follows that the amount of $70,500 (current estimated value of mobile home and car) which the applicant has already the benefit of, should be deducted from this amount.

89. [89]
    In arriving at the percentage figure, I have taken into account all the relevant matters including the current size of the divisible assets available (which is not large); the financial contributions which the respondent has made subsequent to separation to the Crown Rd property; the current health and wellbeing of each party; their current living arrangements; their present earning capacity and any future earning capacity the parties may realistically have on the open labour market also bearing in mind their age.

90. [90]
    Accordingly, my orders are as follows:  

Order 1: That a property adjustment order be made in favour of the applicant and the respondent pay to the applicant the sum of $63,759.00.

Costs

I invite the parties to make submissions in writing in respect of costs within 28 days in the event that neither party agrees that the normal rule set out in s. 341(1) Property Law Act 1974 should apply to these proceedings and in respect of any reserved costs order previously made.