Arthurman and Arthurman

[2008] FamCA 230

FAMILY COURT OF AUSTRALIA

ARTHURMAN & ARTHURMAN [2008] FamCA 230

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Mrs Arthurman

RESPONDENT: Mr Arthurman

FILE NUMBER: SYF 2938 of 2003

DATE DELIVERED: 18 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17-20 December 2007 and 5 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

COUNSEL FOR THE RESPONDENT: Mr Millar

Notations

1. The following definitions for the purpose of these Orders:

   (a)“The [C] Property” means the property at …, C, Folio Identifier ….

   (b)“The [C] mortgages” means the two mortgages to the Commonwealth Bank of Australia secured against the title of the C Property dealing Nos. … and …

   (c)

   “The [M] Property” means the two separate properties at

   
   …A and …B W Street, M, respectively

   Folio Identifiers … and ….

   (d)       “[H]” means the company H Pty Ltd ACN ….

Orders

It is ordered that:

1. Within 30 days from the date of these Orders the following shall occur simultaneously:

   C Property

   (a)the wife is ordered to do all acts and things and sign all documents necessary to transfer to the husband all right, title and interest in the C property unencumbered.

   (b)the husband and the wife are ordered to do all acts and things and sign all documents necessary to discharge the mortgages, and the husband is ordered to repay the balance of the C Mortgages on or before discharge, whether by way of refinance or otherwise.

   (c)the wife is ordered to do all acts and things and sign all documents to assign to the husband any interest in any plant and/or equipment associated with or sitting upon the C property as at the date of this document.

   (d)the husband is ordered to do all acts and things and sign all documents necessary to indemnify and keep indemnified the wife from:

   (i)all liabilities and repayments associated with the C mortgages;

   (ii)all rates and taxes and all other outgoings including utility expenses relating to the C property.

   M Property

   (e)the wife is ordered to do all acts and things and sign all documents necessary to transfer to the husband all her right, title and interest in the M property subject to any existing mortgage.

   (f)the wife is ordered to give vacant possession of the M property on the day immediately prior to the date appointed for completion of the sale of …A, W Street of the M property and to ensure the M property is left in a good state of repair.

   H Pty Limited

   (g)the wife is ordered to do all acts and things and sign all documents necessary to transfer to the husband or his nominee all right title or interest she has in any share in H Pty Ltd.

   (h)the wife is ordered to do all acts and things and sign all documents necessary to transfer to the husband or his nominee all right title or interest she has in any loan account or other similar benefit or facility in H Pty Ltd.

   (i)the wife is ordered to do all acts and things and sign all documents to resign from any office she holds in H Pty Ltd.

   H Pty Limited Trust (“the Trust”)

   (j)the husband and the wife are ordered to do all acts and things and sign all documents necessary to forthwith dissolve the Trust.

2. Within 45 days the husband is ordered to do all acts and things and sign all documents necessary to sell the M property.

3. Paragraph 1 of Order 1 made on 22 November 2007 is discharged.

4. Within seven days of completion of the sale of the last of …A and

   
   

   …B, W Street comprising the M property the husband shall pay or cause to be paid to the wife the sum of $911,009.00

5. If required to do so by the husband the wife will, within 14 days of such request:

   (a)do all acts and things and sign all documents to assign to the husband any licence or right of use related to any Permissive Occupancy associated with the C property.

   (b)do all acts and things and sign all documents to assign to the husband any right title or interest in the Building Approval, Building Consent, Development Approval and/or Development Consent associated with the C property.

6. Pending the transfer of title of the C property:

   (a)the husband shall have the right to occupy the C property with the child (when he is with him) and shall pay and be responsible for all rates, charges and taxes related to the use and occupation of the C property;

   (b)neither the husband nor the wife shall mortgage, charge, encumber or assign their interest in the C property;

   (c)the husband and the wife shall each hold the C property in trust for the husband as tenants in common in shares consistent with these Orders.

7. Pending the date of completion of the sale of the M property:

   (a)the wife shall have the right to occupy …A W Street of the M Property with the child (when he is with her) and shall pay and be responsible for all rates, charges and taxes related to the use and occupation of …A W Street of the M property.

   (b)the wife shall not mortgage, charge, encumber or assign her interest in the M property.

   (c)the husband and the wife shall each hold the M property in trust for H Pty Ltd as tenants in common in shares consistent with these Orders.

   (d)the wife shall do all things required of her by the husband to facilitate the sale of each lot of the M property.  In particular the wife shall:

   (i)co-operate in all reasonable ways with the husband, real estate agent, solicitors and prospective purchasers in relation to the sale of each lot of the M property.

   (ii)allow the husband, the real estate agent and any tradesmen engaged by the husband and/or real estate agent access to the M property at all reasonable times for the purpose of preparing each lot (including gardens) for sale.

   (iii)make available any keys.

   (iv)allow access to each lot of the M property for inspections at all reasonable times requested by the husband and/or real estate agent.

   (v)ensure that the M property is in a neat and clean condition at the time of inspection by prospective purchasers.

8. Within six months the husband sell the Porsche motor vehicle Registration

   
   

   ….

9. The husband shall be solely entitled to the exclusion of the wife to all other property, furniture, contents, plant, equipment, tools, building materials and resources situated at the C property.

10. The wife shall be solely entitled, to the exclusion of the husband, to all other property, furniture, contents and resources situated at the M property.

11. Subject to the provisions of paragraph 10 and Annexure “A” to the Orders made 22 November 2007, the husband and the wife shall each solely be entitled to the exclusion of the other to all other property, furniture, contents and resources not already referred to in these Orders in the possession of that party at this date.

12. Save and except as these Orders provide to the contrary, each of the parties shall, by this Order, mutually release the other from all debts owing from one to the other.

13. Within 30 days the wife pay to the husband $3,950 being 50% of Single Expert costs paid by him to Mr E.

14. Each party shall be at liberty to apply on seven days notice in relation to the implementation of these Orders.

15. In the event that either party refuses or neglects to comply with the provisions of these Orders then the Registrar of the Federal Magistrates Court or the Family Court of Australia may pursuant to s.106A(1) of The Family Law Act 1975 execute all deeds and documents in the name of the husband and/or the wife and do all acts and things necessary to give validity and operation to the said Orders.

16. The matter may be re-listed within the next seven days or such further time as the court allows for argument on costs failing which there will be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2938  of 2003

Mrs Arthurman

Applicant

And

Mr Arthurman

Respondent

REASONS FOR JUDGMENT

Introduction

The Applications

1. Before the Court are competing applications for orders for alteration of property interests and for orders in relation to the care of the one child of the parties’ marriage, (“the child”), born in February 1995.

2. At the outset of the proceedings I was informed by Counsel that the parties had reached agreement on the matter of the care of the child and I have made orders reflecting that agreement.

Background Facts

1. The husband was born in April 1947 and is aged 60 years.

2. The wife was born in March 1955 and is aged 53 years.

3. The husband had been previously married.

4. Of the husband’s prior marriage there were four children who were aged at the time of commencement of cohabitation 22 years, 20 years, 13 years and 12 years.

5. The wife had been previously married.

6. Of the wife’s prior marriage there were no children.

7. The date of the commencement of cohabitation of the parties was in dispute the wife asserting in September 1989 and the husband asserting November 1991.

8. Of the marriage of the parties there was one child, referred to above.

9. The date of separation of the parties was in dispute, the wife asserting January 2003 and the husband asserting 31 December 2001.

10. The husband was throughout the relationship employed as a professional.  He had also undertaken some property development and trading.

11. The wife was throughout the relationship an office administrator.  She also assisted the husband with the development and maintenance of assets as set out below.

12. The wife presently works for limited hours per week.

13. The husband works as a professional.

The assets and liabilities of the parties

1. In relation to their competing claims for alteration of property interests the first task facing the Court is to ascertain the property of the parties or either of them.

2. The parties produced at the commencement of the proceedings a balance sheet setting out the assets and liabilities and superannuation of the parties and also setting out those matters in that balance sheet which were in dispute.  A further amended balance sheet (Exhibit 16) was produced at the conclusion of the hearing which reflected the fact that further agreement had been reached between the parties.

3. That Balance Sheet was a follows:

Assets	Owned	Wife value ($)	Husband value ($)	Agreed/Disputed
C property	T-in-C	1,400,000	1,400,000	Agreed
Plant and Equipment – C property	Husband	27,750	27,750	Agreed
W property  (50% share)	Wife	140,000	140,000	Agreed
Plant and Equipment – W property (h)	Husband	16,500	16,500	Agreed
Plant and equipment – W property (w)	Wife	1,000	10,000	Disputed
Shares in H Pty Ltd	1 each	892,098	892,098	Agreed
Husband’s practice	Husband	52,500	52,500	Agreed
Bank accounts
Wife’s St George account (closed)	Wife	0	0	Agreed
Wife’s CBA account	Wife	961	961	Agreed
Husband’s CBA account	Husband	1,100	1,100	Agreed
Husband’s joint account with his new partner (50%)	Husband	3,300	1,618	Disputed Ownership

Shares
Energy World EWC (3,197 @ $0.940)	Husband	3,005	3,005	Agreed
Pacific Energy Ltd PEA (2,000 @ 0.50)	Husband	900	900	Agreed
Eiffel Technologies Ltd EIF (3,596 @ $0.021)	Husband	86	86	Agreed
IAG Shares IAG (308 @ $4.33)	Wife	1,334	1,334	Agreed
Motor vehicles
1989 Porsche	Husband	70,000	70,000	Agreed
2000 Holden	Wife	10,000	10,000	Agreed
1988 Daihatsu	Husband	8,000	8,000	Agreed
38’ Timber Motor Cruiser	Husband	122,500	122,500	Agreed
Add backs
Cash-in of L Plan	Husband	16,512	16,512	Agreed
Porsche 928 Sale Proceeds	Husband	10,500	10,500	Agreed
Sale Portman Shares	Husband	2,000	2,000	Agreed
Legal fees paid by wife	Wife	80,978	80,978	Agreed
Legal fees paid by husband	Husband	60,595	60,595	Agreed
Gross assets	$2,921,619	$2,928,937
Liabilities
CBA mortgage on C property – Business o/d	Husband	37,878	37,878	Agreed
2007 Income tax liability (est)	Husband	10,765	10,765	Agreed
GST on sale of Porsche 928	Husband	955	955	Agreed
GST & Inc tax – 1989 Porsche (Provn)	Husband	6,000	6,000	Agreed
CGT – C property (being assessed)	Joint	-	-	Agreed
CGT – W property (being assessed)	Wife	10,965	10,965	Agreed
Loan from wife’s parents	Wife	67,894	33,856	Disputed
Gross liabilities	$134,457	$100,419
Superannuation
Colonial	Husband	31,564	31,564	Agreed
AMP Flexible Lifetime	Wife	13,849	13,849	Agreed
First State Super	Wife	4,733	4,733	Agreed
Gross superannuation	$50,146	$50,146
Summary
Gross assets	2,921,619	2,928,937
Gross liabilities	134,457	100,419
Net assets before superannuation	2,787,162	2,828,518
Gross superannuation	50,146	50,146
Net assets and superannuation	$2,837,308	$2,878,664

1. There were issues which remained however and which I determine as follows:

   a)The husband and the wife although initially at issue on the value of the C property agreed on the hearing to a value of $1,400,000.00.  Notwithstanding that concession by the husband, the wife proposed that the property solely on the basis that it was transferred to her was to be valued at $1,500,000.00.  In the alternative it was proposed that it be subject to sale by auction with both parties permitted to bid.  Such a process would have carried with it additional costs.  This is a reflection perhaps of an opinion of the wife as to its value.  She is not a qualified valuer and the value accepted by both parties is the higher of the opinion of two valuers and is the opinion of the valuer retained by the wife.  It may be that the wife genuinely holds that opinion but I will not rely upon it nor do I think that in the circumstances it is necessary to test the value of the property by sale.  It is put by the wife as an encouragement to accede to the orders she seeks, or perhaps to deny to the husband the orders that he seeks.  I decline in any event to put the asset in the balance sheet at that value.  I note that until relatively recently in this litigation the common view was that the husband would retain the property.

   b)The parties were at issue as to the value of the wife’s personalty at W, the wife asserting a value of $1,000.00 and the husband the sum of $10,000.00.  No evidence was adduced from any expert as to the value of the personalty.  In the circumstances it is urged on me by Counsel for the wife that I should adopt her figure since it is an admission of value against interest.  I do not think it should be so categorised.  The items are therefore attributed an indeterminate value by me.  This I think is the only reasonable finding open to me on the evidence.

   c)The husband and the wife are at issue as to what of the amount held in a joint account of the husband held with the husband’s new partner should be taken into account in the balance sheet.  The evidence is that the whole of the amount was contributed by the husband.  It is urged upon me by Counsel for the husband that I should disregard all but $1,650.00 of the amount as an asset relying on the legal ownership of the funds in the joint bank account.  Counsel for the wife says that I should take it all into account, given its derivation from the husband.  I will take the whole of the amount into account as to the sum of $1,650.00 being property of the husband and as to $1,650.00 being a financial resource of the husband.

   d)The husband sold certain shares and his evidence was that a portion of the sum derived from the sale was used for living expenses.  It is submitted by Counsel for the wife that this amount should be added into the balance sheet.  Counsel for the husband says that the sum was spent on living expenses of a man whose standard of living was not excessive and about which there was no suggestion of waste or extravagance.  I accept that proposition and decline to add back the sum.

   e)In relation to the overdraft liability specified in the original balance sheet it is agreed now between the parties in submission that the sum has already been taken account of in the valuation of the practice and accordingly I remove it from the balance sheet.

   f)

   In relation to the loans owing by the wife to her mother and father,

   
   

   Mr Millar the counsel for the husband has submitted that the sum should not be included as a liability.  The amount of the loans was $67,894.00.  The submission of the husband is that the wife’s mother’s evidence on affidavit was prepared by the wife and should be disregarded.  He submitted that the failure of the wife to call her father as well, in relation to the loans, should give rise to an inference that he could not support the wife’s assertions as to the requirement of her parents to repay the loan.  I have however the oral evidence of the wife’s mother, notwithstanding the issues as to the origin of the affidavit, and on that evidence I do accept that the loans have been made on the basis that they would be repaid and that she requires them to be repaid.  The wife’s evidence is that she will repay them.  Justice requires that I accordingly include them in part in the balance sheet.  Since part of the loan was for costs of these proceedings namely the sum of $33,856.00 I decline to include that sum or add back that sum being part of the sum paid by the wife for her legal costs.  The balance so paid will be added back and the balance of the loan will be included.  I will however take into account in a general way in considerations under section 75(2) the total liability of the wife to the mother and for legal costs.

   g)It is said by the wife that a taxation liability of the husband for taxation in the sum of $10,765.00 should not be recognised as a liability diminishing the pool of assets.  The liability is for the 2007 tax year.  During that year the husband used his income inter alia to maintain the assets which are the subject of disputed division between the parties, and he paid expenses and child support for the parties’ child.  The wife can not claim she received no benefit from the income on which the tax has been assessed and accordingly the liability will be included.

   h)There is an issue between the parties as to whether the liability for tax arising on the sale of a certain Porsche motor car, the property of the husband, should be included.  The tax in that event is agreed at $6,000.00.  It is proposed that there be an order that the vehicle be sold within six months and I intend to make that order.  Accordingly the agreed amount of tax will be taken into account as a liability.

   i)It is submitted by the wife that a potential Capital Gains Tax liability arising if her interest in the W property is sold should be taken into account.  There is no evidence that that property is going to be the subject of any proximate sale.  In the circumstances and in accordance with the more common practice of this Court and absent that evidence I decline to include the sum as a liability.

1. Accordingly the assets and liabilities of the parties are found to be:

Assets	Owned	Determined ($)	($)
C property	T-in-C	1,400,000
Plant and Equipment – C property	Husband	27,750
W property  (50% share)	Wife	140,000
Plant and Equipment – W property (h)	Husband	16,500
Plant and equipment – W property (w)	Wife	0
Shares in H Pty Ltd	1 each	892,098
Husband’s professional practice	Husband	52,500
2,528,848	2,528,848
Bank accounts
Wife’s St George account (closed)	Wife	0
Wife’s CBA account	Wife	961
Husband’s CBA account	Husband	1,100
Husband’s joint account with his new partner (50%)	Husband	1,650
3,711	3,711
Shares
Energy World EWC (3,197 @ $0.940)	Husband	3,005
Pacific Energy Ltd PEA (2,000 @ 0.50)	Husband	900
Eiffel Technologies Ltd EIF (3,596 @ $0.021)	Husband	86
IAG Shares IAG (308 @ $4.33)	Wife	1,334
5,325	5,325
Motor vehicles
1989 Porsche	Husband	70,000
2000 Holden	Wife	10,000
1988 Daihatsu	Husband	8,000
38’ Timber Motor Cruiser	Husband	122,500
210,500	210,500
Add backs
Cash-in of L Plan	Husband	16,512
Porsche 928 Sale Proceeds	Husband	10,500
Sale Portman Shares	Husband	0
Legal fees paid by wife	Wife	47,122
Legal fees paid by husband	Husband	60,595
134,729	134,729
Gross assets	$2,883,113
Liabilities
2007 Income tax liability (est)	Husband	10,765
GST on sale of Porsche 928	Husband	955
GST & Inc tax – 1989 Porsche	Husband	6,000
CGT – W property	Wife	0
Loan from wife’s parents	Wife	34,038
51,758	51,758
Gross liabilities	$51,758

Superannuation
Colonial	Husband	31,564
AMP Flexible Lifetime	Wife	13,849
First State Super	Wife	4,733
Gross superannuation	50,146	50,146
$50,146
Summary
Assets	2,528,848
Bank accounts	3,711
Shares	5,325
Motor vehicles	210,500
Add backs	134,729	2,883,113
Gross assets	2,883,113
Gross liabilities	51,758
Net assets before superannuation	2,831,355
Gross superannuation	50,146
Net assets and superannuation	$2,881,501

The contributions of the parties to the acquisition, conservation and improvement of the property of the parties or either of them and their contributions to the welfare of the family

Date of Commencement of cohabitation

1. The wife asserts in her recent evidence that cohabitation between the parties commenced in September 1989 and the husband asserts in his evidence that cohabitation commenced in November 1991.

2. The wife gave evidence that the parties lived together at her home four or five nights per week from a date in September 1989.  Her oral evidence on many of the matters revealed that the recollection of dates was not her forte.

3. Her mother gave oral evidence of her advice to her daughter that she should not cohabit with the husband until his affairs with his previous wife were concluded.  She also gave evidence of being present in 1989 at her daughter’s home from time to time.  Those visits were of a few days duration and she says that on a number of occasions the husband was present and stayed overnight.  It was noted that the evidence she gave by affidavit was given in an affidavit prepared by the wife under the apparent instruction of the mother and signed by her in the presence of one of the wife’s employers.  There was no evidence that it passed in its preparation through the scrutiny and questioning of the wife’s lawyers.  The wife’s mother’s evidence was to the effect that she volunteered to give evidence as to the money which was owing to her and that seemed to me to be her primary purpose and anything else was not perhaps as important.  I accept however that from time to time the husband visited and stayed with the wife prior to their commencing full time cohabitation.

4. The husband gave evidence that he had (albeit that he might have spent time overnight with the wife from time to time prior to 1991) maintained his home at B.  He did not move into the wife’s residence and did not cohabit with her on a full time basis.  The husband tendered in evidence the wife’s initiating application which was signed by her solicitor and which showed a date of commencement of cohabitation as November 1991.  In addition letters from her then solicitor, Ms Ofner, refer to the like date as being the relevant date of commencement of cohabitation.

5. I accept the evidence of the husband on this matter and find that the parties commenced cohabitation in November 1991.

6. I note that that is a finding on an issue which establishes a convenient point of reference for certain purposes.  However, I note that I am obliged to consider the parties’ various contributions to the acquisition, conservation and improvement of property whenever made, and that contributions prior to the commencement of cohabitation and following separation are also relevant to my determination.

Assets held at the date of the commencement of cohabitation

1. The husband’s evidence is that the date of his cohabitation with the wife was at about the time that he finalised his affairs with his former wife. The finalisation of those affairs was given effect to in an agreement entered into between the parties as provided for in the provisions of section 86 of the Family Law Act 1975. That document recites the assets of the husband as:

   a)A property at … which the husband held with his former wife and subject to two mortgages one of which secured advances or facilities provided to the husband’s professional practice.

   b)Household furniture and electrical equipment contained in the home.

   c)The property at C which it is recited was purchased in June 1990 for the sum of $365,000.00 which was subject to a mortgage in the sum of $250,000.00 secured to the Commonwealth Bank.

   d)The husband’s property at B was said to be the subject of a valuation procured by his former wife of $55,000.00 (said in the deed to be estimated by the husband to have a value of $70,000.00).

   e)The husband had household equipment and furnishings contained in B property.

   f)An interest in the jointly owned property with Mr H at S consisted of an interest in two lots which had been sold.  His interest was expressed as one half of the net proceeds of that sale, of which an amount appears not to have been specified.  (The evidence subsequently elicited is not entirely clear but it seems that it is likely that the husband had between a total of between $74,000.00 and $83,000.00 on deposit.)

   g)An interest with Mr H in two unsold lots which were said to have a total value of $160,000.00.

   h)The husband in the deed asserts a contingent liability for one half of the income tax, land tax, rates and sale costs amounting to $63,000.00 in relation to the S property (which by definition encompassed all lots including those sold) leaving him with a liability for one half thereof of $31,500.00.

   i)An interest as tenant in common in equal shares in certain land at … said in the deed to have been valued at $1,000.00.

   j)The husband is said to have a contingent liability (never called upon prior to discharge) in relation to a guarantee procured by a lender with respect to loans to his two eldest children.

   k)The wife is said to have a motor vehicle of a value of $16,000.00 and the husband motor vehicles to the net value of $162,500.00.

   l)The husband is said to be the owner of a boat which with its tender and outboard are said to have a value of $85,000.00.

   m)The husband is said to be the owner of another boat of a value of about $15,000.00.

   n)It is recited that the husband was one of the two equal shareholders in a company which owned certain real estate assets consisting of seven lots in a strata plan.  The husband’s former wife it is recited procured a valuation of the property at $1,600,000.00.  That property was subject to a mortgage said to be $440,000.00.  The company had accumulated funds of $40,000.00.

   o)The husband was the owner of shares in publicly listed companies to a value of $4,910.00.

   p)The husband had a professional practice the value of which he estimated at $90,000.00, net of tax liabilities.

1. There was evidence that also in addition to the specified assets the husband had other assets and the husband’s evidence was that his then wife well knew of the additional assets despite statements made in the agreement and certain correspondence which would seem to indicate the contrary.

2. The wife’s evidence was that at the time of the commencement of cohabitation she had her interests in the property at W, and an interest in a property at P, some household contents and debts of $27,500.

Credit

1. The credit of each of the husband and the wife was attacked in cross examination and was the subject of significant submission.

2. The husband asserted that the wife was not truthful in her assertion of the date of commencement of cohabitation.  Indeed I find that the date is other than asserted by her in her oral evidence and consistent with what she had earlier asserted in writing through her solicitor to be the date.

3. The wife had not been forthcoming until the trial as to certain bank accounts she had and evidence in relation to the payment to her prior husband of the sum of $102,500.00.  The wife’s evidence in relation to payments to her former husband were the subject of different dates at different parts of the evidence.

4. The wife in giving her evidence was unresponsive to the questions, on occasions evasive and added material to her answer not sought by the question.  Counsel was obliged to repeat questions on occasions in order to procure a responsive answer.

5. The husband was cross examined to the effect that he had failed to disclose in his taxation return the capital gain procured on the sale of a property at A.  He insisted that he had provided his accountant with full particulars of the sale so that the proper information might be contained in the return.  His accountant asserted that it was not now possible to procure the electronic return to ascertain whether or not it had been included.  He conceded that it was not included in the paper copy produced but said that that would not have precluded the possibility that it was included in the electronic return.  In any event it appears that there were capital losses in the same year which would have meant that no tax would have been payable.  I accept that the husband did give the accountant the information which would have enabled its inclusion.

6. The husband was cross examined on the contract entered into for the sale of a property part of the consideration for which was received in cash pursuant to a collateral agreement.  The husband fully disclosed the collateral agreement and sought tax advice in relation to the receipt of cash.  The wife asserts that he conspired with the purchaser to defeat the revenue.  The husband rightly points out that the collateral agreement and the receipt were dutiable documents and the obligation for payment of stamp duty rests with the purchaser.  It is pointed out by him that his disclosure of the unusual nature of the transaction was a free and voluntary one which betokens a candour which belies any participation in fraudulent conduct.  If there was to be, he says, any advantage to the purchaser as to stamp duty, that would have been more than offset by the disadvantage of the loss of the cost base for the purpose of Capital Gains Tax.

7. A significant part of the cross examination of the husband was directed to the assets available at this time, it being suggested by the wife that he did not properly disclose to his former wife the extent and nature of his assets.

8. The husband, whilst conceding that he had not done so in the formal documentation comprising the section 86 agreement, said he did in fact reveal to his wife all his available assets in conversations and agreements which took place between them. He asserts that the wife knew of those assets notwithstanding the assertions made in the agreement and said by the then wife’s solicitors in a letter to have been made in conversation between the husband and her solicitor. The husband denied that the letter accurately reflected the conversation which had taken place nor that the disclosure in the deed reflected the state of his wife’s knowledge. He did not call his former wife to give evidence and one can understand his reluctance to involve her in the present proceedings. If I accept the assertions put to the husband in cross examination it seems that the assets of the husband at the date of cohabitation were indeed greater than those which he had set out in the agreement.

9. The other assets said to exist and not referred to in the agreement were:

Interest in a property at A

1. The section 86 agreement is dated November 1991. At that time there had been an oral agreement that the husband would purchase a block of land in a proposed subdivision at an agreed price. There was no evidence of acts of part performance and being an oral agreement in relation to the sale of land it would have been unenforceable. The contract for the purchase of the land was exchanged in 2003.

2. The husband was cross examined in relation to other matters said not to have been disclosed in the deed and said in evidence that his then wife was fully aware of those matters.  It is submitted that other matters were dealt with between the husband and his former wife not included in the separation agreement and reference is made to the agreements in relation to child support.  It is strongly urged by the wife’s Counsel that the husband should be the subject of adverse credit findings in the present proceedings because of this conduct and his answers given in cross examination.

1. Notwithstanding concerns I have about the separation agreement and its accuracy I am of the view that much of the evidence of the husband is preferable to that of the wife, but not always. I do not regard the evidence on the section 86 agreement as particularly satisfactory but generally I accept what the husband says he had at that time and I believe he has made a proper disclosure in the present case.

2. I decline on the current state of the evidence and having seen the husband in the witness box to find that I cannot rely on his evidence in this case because of a less than completely satisfactory accuracy in his documents settling his previous wife’s claims.

3. My findings reflect my findings on whose evidence I accept on any relevant issue, where that evidence is in conflict.

4. The wife also was cross examined on the question of her disclosure to her former husband and the number of bank accounts she had at that time and I was left with the impression that although perhaps not to the same degree she also had been less than full and frank with such disclosure.

Date of separation

1. The parties are in issue as to the date of their separation.

2. The wife admits that the husband moved to the renovated boatshed at the

   
   

   C property in December 2001 but, she says continued to have a relationship of intimacy from time to time until January 2003 when she says he informed the wife that the marriage was at an end.

3. The husband asserts that the parties separated in December 2001.

4. There is evidence that the parties separated and commenced to live in separate dwellings in December 2001;  the wife in M and the husband in the C property.

5. The question arises as to whether acts on his part post that separation constituted a resumption of the matrimonial relationship.

6. The law is clear that isolated acts of social or sexual intercourse do not cause a separation period to end.  The requirement for a separation to end is the restoration of the consortium vitae.

7. I am not satisfied on the evidence that the husband and wife, having separated as alleged in December 2001, caused the consortium vitae to be reinstated and in this regard I prefer the evidence of the husband.

8. Accordingly I find that the parties separated in December 2001.  Once again that does not mean that I should not take into account any contributions made by either party post that date.

Contributions

1. The husband completed his professional qualifications in 1975.  By the date of the commencement of cohabitation the husband had developed a practice.  He also had carried out land development subdivisions and done some property work.  He had a driver’s licence which was appropriate to heavy vehicles and was able to operate farm machinery, dump trucks and other vehicles plant and equipment.  He had developed sufficient skill to effect repairs to his boat, motor vehicles and plant and equipment.

2. I accept that the husband provided the wife with some society, help and comfort prior to the commencement of cohabitation and she afforded him the like benefits.  It is also accepted that the parties worked hard physically on the wife’s property at W.  The wife brought into the marriage monies which at one time were used to reduce debt on the property at C.  The husband realised his property held at the time of the commencement of cohabitation and the evidence is that the gross realisation was the sum of $1,271,696.00.  The net funds received by the husband were applied to the acquisition of property, the meeting of outgoings on property, in some cases in the reduction of debt.  He applied his skill as a professional to building the parties’ assets.  He performed physical work in the development of the C property and supervised the construction of the town houses owned at M.  The wife concedes that the husband’s financial contributions to the acquisition and the conservation and improvement of the property of the parties were greater than hers.  She puts in issue however the extent of those contributions.

3. Prior to the commencement of cohabitation the wife performed some household services for the husband and provided him with society, help and comfort.

4. I find that these contributions were made from time to time over the period which ended in the parties commencing full time cohabitation, and thereafter continued to a greater extent.

5. The wife and her family made some contributions to assist the husband with his McCarrs Creek Road Property development.  This is conceded by the husband.

6. From 1991 to 1995 she and her husband worked hard on that property.  The husband sought to minimise the extent of the wife’s work but I accept that within the parameters of what she could do she did apply herself to it.  The husband concedes the extent of the assistance provided by the wife’s father in the work that he did on the property.

1. During the cohabitation of the parties and post separation the wife was the major contributor to the care of the parties’ child but the husband also contributed, and not in an insignificant way.  He was actively involved in the day to day care of the child and regularly performed household duties including the preparation of meals, cleaning and dishwashing.  The wife also worked and earned some income.

2. The wife made contributions in assisting the husband with renovations to the Boat.  She also assisted with the renovation of the premises from which the husband conducted his professional practice in M.

Contributions post separation

1. The wife has worked on a part time basis since the separation of the parties.  She is criticised for not working full time.  I do not criticise her for that but her financial contribution post separation was limited because of it.  In addition the husband’s contributions are made the more valuable since it is asserted and I accept that the wife has sought to impede income flow by obstructing the lease of one of the units at M.  She has denied access to a horticulturist hired to get the property into order.  She has not taken any steps to arrange for the letting of the property adjacent to her residence.  Since the separation the husband has maintained the C Property and the M Property.  He has paid the outgoings of both properties.  He has applied his income to make provision for the wife and his son in a variety of ways.  She also had access to sums of money held by the company H Pty Ltd.

2. I conclude that in this marriage, contributions of the husband exceed those of the wife and taking into account both their financial and non financial contributions including those made by the wife’s father, that a division of the net assets and superannuation in the order of 67% to the husband and 33% to the wife would be an appropriate recognition of those contributions.

Section 75(2) Considerations

1. The husband has the benefit of a financial resource in the balance of the sum held to the joint credit of himself and his new partner.  The wife will have the ongoing responsibility for the loan from the mother including that part of it not added into the balance sheet for costs.  Each of the parties may have further liability for legal costs in respect of these proceedings.  The husband is aged 60 years and is in good health and the wife is aged 53 years and is in reasonable health.

2. The husband is professionally qualified and has had experience as a property developer.  The wife has qualification by experience as an administrative assistant.  The wife has superannuation which is not as well funded as the husband’s fund.

Conclusion on section 75(2)

1. It is clear that the husband is multi skilled and can command an income greater than the wife by a significant margin.  The wife is not without a good earning capacity and may be able to increase her income from that she presently earns.  The husband is older than the wife and will presumably retire at a time earlier than she.  I think that an adjustment ought however  to be made in favour of the wife given these disparities and the amount I allow is 5 per centum so that the wife will receive 38% of the found assets and superannuation.

Overall division of assets

1. The orders I propose to make will effect the following division of assets:

Assets	Husband ($)	Wife ($)
C property	1,400,000
Plant and equipment at C property	27,750
W property as to a half share	140,000
Plant and Equipment at W property owned by the husband	16,500
Plant and Equipment at W property owned by the wife	0
Shares in H Pty Limited	892,098
Husband’s professional practice	52,500
Wife’s CBA Account	961
Husband’s CBA Account	1,100
Husband’s joint account with his  new partner 50%	1,650
Energy World Shares	3,005
Pacific Energy Limited Shares	900
Eiffel Technologies Limited	86
IAG Shares	1,334
1998 Porsche	70,000
Holden motor vehicle	10,000
1988 Daihatsu motor vehicle	8,000
38 Foot Timber Cruiser	122,500
Cash in of L Plan	16,512
Porsche 928 Sale Proceeds	10,500
Legal fees paid by wife	47,122
Legal Fees Paid by Husband	60,595
Amount to be paid by the husband to the wife	911,009
Total Assets	$2,683,696	$1,110,426

Liabilities	Husband ($)	Wife ($)
Amount to be paid by the husband to the wife	911,009
2007 Income tax Liability	10,765
GST on sale of Porsche 928	955
GST 1989 Porsche	6,000
Loan from wife’s parents	34,038
Total Liabilities	$928,729	$34,038

Husband ($)	Wife ($)
Net Assets	1,754,967	1,076,388
Add Superannuation	31,564	18,582
Total Assets and Superannuation	$1,786,531	$1,094,970

1. This division of assets and superannuation will afford to the wife an amount equal to 38 per cent of the total assets and financial resources.

Just and equitable

1. The husband on hearing sought an order the effect of which was that adjustments to the wife must be achieved by cash payments after taking into account retention of property otherwise as set out above.

Orders which should be made

1. I consider that the provision of a cash sum will afford the wife greater flexibility in making decisions for her future.  The wife did not eventually seek the M property.  I believe that the outcome provided for is just and equitable and that no other adjustment is required.

Costs

1. I have been asked to make orders in relation to payment by the wife of one-half of the single expert’s costs amounting to $3,950.  I have considered the question of the single expert fees and take the view that they should be shared equally and paid on settlement of the wife’s entitlement under these orders and her share offset against the amount due to her.

2. As to the question of costs, I have considered those matters required to be considered under section 117 and there is nothing on the evidence so far before me the consideration of which would cause me to depart from an order that each party pay and bear their own costs.  However, I propose that I would afford the parties the opportunity within the next seven days to address me on the issue of costs.  If they choose not to then there will be no order as to costs otherwise.

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:  18 March 2008