BALKEN & VYNER

Case •

[2020] FamCA 955

•

30 September 2020 (Amended pursuant to 17.02A on 18 November 2020

AMENDED PURSUANT TO RULE 17.02A OF THE FAMILY LAW RULES 2004 (CTH) ON 18 NOVEMBER 2020

FAMILY COURT OF AUSTRALIA

BALKEN & VYNER [2020] FamCA 955

FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable – where the husband asserted that it was not just and equitable to make orders adjusting the parties property interests – where the husband received significant gifts, inheritances and income from trusts established by his father during the relationship – where the husband made non-financial contributions to the welfare of the wife and himself – where the wife made more limited financial contributions – where the wife’s primary contribution was to the welfare of the husband and the husband’s child from a previous marriage – where orders are made for the payment of a lump sum to the wife from the husband.

FAMILY LAW – DE FACTO RELATIONSHIPS – where the wife asserted that the parties were in a de facto relationship prior to their marriage – where the husband denied the existence of the de facto relationship – where the parties having married it is the nature of the relationship, its duration and contributions themselves which is relevant rather than whether it meets the legal definition – whilst the parties were in a relationship prior to the marriage the evidence does not demonstrate that they were in a continuous relationship living together on a genuine domestic basis for the duration of their relationship prior to the marriage– where the parties having married it is their contributions they both made prior to and following the marriage that are relevant.

FAMILY LAW – TRUSTS – where the asset pool comprises of a number of corporate entities and  trusts – where the husband is the beneficiary of trusts established by his father prior to his death – where the parties instructed a single expert to prepare a valuation of the various entities which they control or in which they have an interest – where there were disputes as to the value and control of the trusts established by the husband’s father – where it is determined that the husband does not have control of the trusts established by his father, have any current entitlement to or access to the capital of those trusts  

ADDENDUM – Correction of Reasons for Judgment pursuant to r 17.02A of the Family Law Rules 2004 (Cth) – Addition of addendum explaining the corrections.

Corporations Act 2001 (Cth) s 1305
Evidence Act 1996 (Cth) ss 140, 144
Family Law Act 1975 (Cth) ss 4AA, 75, 79

Family Law Rules 2004 (Cth) rr 13.07, 17.02A
Anor & Selwood & Selwood [2017] FamCAFC 197
Black and Kellner (1992) FLC 92-287; (1992) 15 FamLR 343
Carroll v. Price (1960) V.R. 651
Clauson v Clauson (1995) FLC 92-595; (1994) 18 FamLR 693
Dickons & Dickons [2012] FamCAFC 154
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Frederick & Frederick [2019] FamCAFC 87
Giunti and Giunti (1986) FLC 91-759; (1976) 11 FamLR 160
Hoh v Ying Mui Pty Ltd [2019] VSCA 203
In the Marriage of Robb and Robb (1995) FLC 92-555; (1994) 18 FamLR 489
In the Marriage of Rolfe and Rolfe (1979) FLC 90-629; (1977) 5 FamLR 146
Jonah & White [2011] FamCA 221
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kane & Kane (2013) FLC 93-569; [2013] FamCAFC 205
Kennon v Kennon (1997) FLC 92-757; (1997) 22 FamLR 1
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Lee Steere and Lee Steere (1985) FLC 91-626; (1985) 10 FamLR 431
Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507
Mezzacappa and Mezzacappa (1987) FLC 91-853; (1997) 11 FamLR 957
Petrucci & Delos [2017] FamCA 1079
Pittalls v Sherekjig Fettin (1986) Q.B. 868
Russell and Russell (1999) FLC 92-877
Smith & Fields [2012] FamCA 510
Stanford & Stanford (2012) 247 CLR 108; (2012) FLC 93-518
Stone & Stone [2015] FamCAFC 18
Summit & Summit and Ors (Re-Opening) [2009] FamCA 365
Swaney & Ward [1988] FLC 92-928
Symes v Commonwealth of Australia (1987) 89 FLR 356
Trevi & Trevi (No 2) [2019] FamCAFC 57
Wallis v Manning (2017) FLC 93-759; [2017] FamCAFC 14
Weir & Weir (1993) FLC 92-338; (1992) 16 FamLR 157
APPLICANT: Ms Balken
RESPONDENT: Mr Vyner
FILE NUMBER: MLC 2867 of 2017
DATE DELIVERED: 30 September 2020
(Amended pursuant to 17.02A on 18 November 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Macmillan J
HEARING DATE: 10 – 13 December 2018 and 10 – 25 October 2019 and final addresses by way of Written Submissions.

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waller QC with Mr Mereine
SOLICITOR FOR THE APPLICANT: HWL Ebsworth Lawyers
COUNSEL FOR THE RESPONDENT: Mr Dickson QC with Mr Nehmy
SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders made on 30 September 2020

  1. All extant applications be adjourned for mention before Justice Macmillan at 11am on 2 October 2020.

Orders made on 18 November 2020

  1. Pursuant to r 17.02A of the Family Law Rules 2004 (Cth), the Reasons for Judgment delivered on 30 September 2020 are amended to delete references to the incorrect figures as per the reasons outlined in the ‘Addendum.’

  2. All extant applications be adjourned for mention before Justice Macmillan at 10 am on 23 November 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Balken & Vyner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2867 of 2017

Ms Balken

Applicant

And

Mr Vyner

Respondent

REASONS FOR JUDGMENT

(Amended Pursuant to Rule 17.02A of the Family Law Rules 2004 (cth) on 18 November 2020)

  1. The husband and wife in this case met and commenced a relationship in August 2002, were engaged in September 2010 and were married in 2011. They separated in March 2017. The proceedings in this Court were commenced on 24 March 2017 when the wife filed an Initiating Application for Final Orders.

  2. There is a significant dispute between the parties as to the duration and nature of their relationship prior to their marriage, with the wife deposing to a lengthy de facto relationship prior to the date of their marriage, and the implications of that in terms of the court’s determination both with respect to the husband’s case that it is not just and equitable to make any orders adjusting the parties respective property interests and the parties respective contributions.

  3. I accept as submitted by counsel for the husband that, unlike some cases, the dispute as to the nature and duration of the relationship is not material to the question of jurisdiction, the court’s jurisdiction in this case being enlivened by the marriage. I also accept as submitted by counsel for the husband that any findings I make with respect to the duration and nature of the relationship prior to the marriage will, in the event that it is just and equitable to make orders adjusting property interests, go to the court’s assessment of the parties’ contributions throughout the duration of that relationship. It is not enough to determine that the parties are in a de facto relationship for the purposes of assessing their contributions and on that basis their entitlements. Rather the court must assess the contributions the parties have each made during their relationship, whether or not that relationship satisfies the legislative definition of a de facto relationship.      

  4. It is the wife’s case that there should be an adjustment in her favour of 38 per cent of what she says is the net asset pool based upon contributions assessed at 65/35 in the husband’s favour and an adjustment of 3 per centum in her favour pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”) which is based upon the husband’s alleged failure to provide full and frank disclosure and his conduct during the proceedings.

  5. The husband’s primary position is that it is not just and equitable to make an order pursuant to s 79 of the Act adjusting the parties existing property interests. In the alternative it is his case that if the court is satisfied that it is just and equitable to make orders pursuant to s 79 of the Act, then the parties respective contributions should be assessed at 85/15 in his favour of a pool excluding any share of the Vyner Family Trust; or that if a share of the Vyner Family Trust is included as an asset available for division then the contribution based assessment should be 87.5/12.5 per centum in his favour. It is also the husband’s case that there should be an adjustment of 2.5% in the wife’s favour having regard to the factors in s 75(2) of the Act but that there is no basis for the adjustment she seeks in her favour pursuant to s 75(2)(o) of the Act based upon him having failed to provide full and frank disclosure as alleged by the wife and/or his conduct of the proceedings.

Background

  1. The wife was born in 1952 and is currently 67 years of age. The wife is not currently engaged in employment and it is generally accepted by the parties that, given both her age and state of health, would not be able to re-enter the workforce.

  2. The husband was born in 1963 and is currently 57 years of age. The husband describes himself as a company director. He is currently resident in the USA. His primary source of income is from trusts established by his late father Mr B Vyner prior to his death.

  3. The wife deposes to the parties being in a continuous de facto relationship as defined in s 4AA of the Act from August 2002 until 2011, when they were married, and thereafter as husband and wife until the date of separation in March 2017.

  4. The husband, in contrast, says that prior to 2011 the parties were in a fragmented “relationship of sorts” which was characterised by periods when they were living in separate residences, periods of living together under the one roof, and periods when he says they were separated and living apart.

  5. On either case, it is common ground that the parties lived together for some time in the wife’s property at C Street, Suburb D (“the C Street Property”), and following their marriage in the property at W Street, Suburb F (“the Suburb F Property”) prior to their relocation to the USA in 2012. After the parties relocated to the USA they lived in the property they had purchased at G Street in Suburb E (”the G Street property”). After separation, the wife moved back to Australia and lived in the Suburb F Property until it was sold in September 2018. Thereafter the wife moved into a rental property and continues to live in rented housing.

  6. There are no children of the marriage, however both parties have adult children from previous relationships. The wife’s children lived with the parties when they resided together in the C Street Property and the husband’s son spent time with the husband at the C Street Property, at H Street, Suburb J (“the Suburb J Apartment “) and at the Suburb F Property.  

  7. Pursuant to orders made by consent on 3 May 2017 the husband paid $172,371 to the wife by way of partial property settlement and continues to pay $12,500 per calendar month to the wife. The husband also made or makes the following payments for the wife’s benefit:

    ·    Life and health insurance levies for the wife;

    ·    One return business class ticket every six months between Melbourne and K City for the wife;

    ·    The wife’s reasonable agreed costs of relocation from USA to Melbourne;

    ·    Insurance and maintenance expenses for the Motor Vehicle 1 driven by the wife; and

    ·    All reasonable outgoings with respect to the Suburb F Property (prior to it being sold) and the G Street Property.

  8. Pursuant to orders made by consent on 13 December 2018 the wife received $2,000,000 upon settlement of the sale of the Suburb F Property with such sum to be repaid to the husband upon settlement of the sale of the G Street Property.

Standard of proof

  1. Pursuant to s140 of the Evidence Act 1996 (Cth) (the “Evidence Act”) the standard of proof in these proceedings is the balance of probabilities. In determining whether it is satisfied to the requisite standard the Court must to have regard to the following matters:

    (a)The nature of the cause of action or defence;

    (b)The nature of the subject-matter of the proceeding; and

    (c)The gravity of matters alleged.

Material Relied Upon

  1. The wife who is the applicant in this case relied upon the following documents:

    a)Her Initiating Application filed 24 March 2017;

    b)Her Trial Affidavit filed 7 September 2018 (“the wife’s Trial Affidavit”);

    c)Her Financial Statement filed 7 September 2018 (“the wife’s Financial Statement”);

    d)Her Affidavit in Reply filed 19 October 2018 (“the wife’s Affidavit in Reply”);

    e)Affidavit of Mr L filed 7 September 2018;

    f)Affidavit of Mr N filed 7 September 2018;

    g)Affidavit in Reply of Mr N filed 19 October 2018; and

    h)Affidavit of Ms M filed 7 September 2018.

  2. The husband relied upon the following documents:

    a)His Amended Response to Initiating Application filed 6 April 2018;

    b)His Trial Affidavit filed 8 October 2018 (“the husband’s Trial Affidavit”);

    c)His further Affidavit filed 7 October 2019 (“the husband’s second Affidavit”)

    d)His Financial Statement filed 7 December 2018 (“the husband’s Financial Statement”);

    e)Affidavit of Mr P filed 8 October 2018;

    f)Affidavit of Mr Q filed 8 October 2018; and

    g)Affidavit of Ms R filed 12 October 2018.

  3. Both the husband and wife were cross-examined as were the wife’s sons Mr L and Mr N and the husband’s son Mr P. None of the other witnesses the parties relied upon were required for cross-examination.

  4. Counsel for each of the parties also relied upon their case outlines and filed detailed written final submissions. Each party relied upon annexures to their respective affidavits and numerous documents were tendered and form part of the evidence.

  5. The matter was listed for mention on 2 September 2020 and on 9 September 2020 counsel for both parties made submissions with respect to the conversion rate the court should apply to the value of foreign assets.

  6. I have had regard to all of the evidence of the parties and their witnesses and have considered their case outlines and final written submissions.

The Evidence

Husband and his Witnesses

  1. Counsel for the wife submitted that the husband was an unsatisfactory witness who gave “implausible, conflicting and at times dishonest evidence” and that absent objective corroboration the court should reject his evidence.  This is not consistent with my observations of the husband’s evidence.

  2. Counsel for the wife referred to a number of examples which they submitted highlighted the husband’s lack of credibility. They included the following matters:

    ·That the husband denied that he and the wife had any joint accounts but that the documentary evidence ultimately demonstrated that he and the wife had at least three joint accounts;

    ·That although in his US visa application the husband described himself as holding assets of approximately $31 million, including personal assets in Australia of $23 odd million, in cross examination he said that this was not accurate.

    ·That the husband said in cross examination that he was “fairly certain” that he would have pointed out any errors in his US visa application  to his immigration lawyer but that it was clear from the final version of the document that no changes had been made. And that it was clear that the husband had signed the document notwithstanding that he said he had not done so.

    ·That the husband had attempted to characterise a $40,000 wedding gift to Mr L and his wife as a loan and when confronted with a note in his handwriting which described it as a “wedding present” prevaricated saying that it was in his books as a loan.

    ·That the husband denied having had an extra-marital affair and continued to deny the affair in the face of what counsel for the wife described as objective evidence of that affair.

    ·The husband’s denial in his first trial affidavit that he had promised to transfer the Suburb F Property to the wife was contradicted by his own evidence in cross-examination that in July 2015 he discussed transferring the property to the wife.

    ·That in cross examination the husband had categorically denied operating the wife’s bank accounts yet six days later when cross examination resumed, acknowledged that he had transferred money from the wife’s account albeit he denied doing so without being asked by the wife to do so.  

  3. Counsel for the wife submitted that these examples demonstrated the husband’s approach to these proceedings and the lengths he would go to in order to minimise the duration and nature of his relationship with the wife prior to the marriage and the wife’s contributions during that period in order to achieve a more favourable outcome.

  4. In my view, as submitted by counsel for the husband, the husband’s recall of matters over many years and significantly from many years ago was “remarkably good”. I also accept counsel for the husband’s submission that given the time period and the degree of detail required of him in cross-examination it is not surprising that he may have failed to recall details of particular accounts, transactions or general events and circumstances. Or that from time to time the husband may have made mistakes about matters such as whether he and the wife operated any joint accounts, whether he may have operated accounts in the wife’s name, which even on the wife’s case he did on a limited basis, what he said to the wife about the Suburb F Property or the details of his United States visa application. I also accept as submitted by counsel for the husband that when documents were produced which contradicted his recollection on most occasions the husband made appropriate concessions.

  5. As submitted by counsel for the husband cross-examination particularly given the historical nature of the questions is primarily a test of the veracity of the husband’s evidence rather than his memory. I generally found the husband to be an honest witness doing his best to answer truthfully the questions he was asked.

  6. Counsel for the wife submitted that the husband’s denial that he had an affair with Ms S beggared belief in the face of the objective evidence and in particular the text messages passing between the husband and his friend Mr Q in relation to him being at the T Hotel and in particular his reference in one of those messages to Ms S being in the shower. The husband in both his affidavit evidence and in cross-examination denied that he had been in a relationship with Ms S. The paragraphs of the wife’s affidavit with respect to this alleged affair were struck out as were the messages themselves primarily on the basis of their lack of relevance however a message the husband sent to Mr Q on 23 October 2016 was put to the husband in cross-examination. The wife’s submission rests upon the Court being satisfied to the requisite standard that this text message clearly demonstrates that the husband and Ms S were staying in the same room at the hotel and it follows were having an affair. Although that is one interpretation of that message weighing up the evidence including the husband’s oral evidence I am not satisfied to the requisite standard that is the case.

  7. As acknowledged by counsel for the wife whether the husband had an affair is not relevant for the purposes of the matters I must determine and goes only to the husband’s credibility. However even if the court were to conclude, despite the husband’s denials, that he had had an affair, that does not necessarily mean that the court should not accept other parts of his evidence. It does not follow that just because the court finds that a witness has been untruthful about one issue that it should necessarily reject that witness’s evidence on all other issues.

  1. I also found the husband’s son Mr P, whose evidence was focused primarily on the nature of the husband’s relationship with the wife, in particular when he lived with the husband in the apartment at the Suburb J Apartment, to be a good witness. As submitted by counsel for the wife he answered questions truthfully, making concessions at appropriate times and indicating when he did not have a clear recollection.

The Wife and her witnesses

  1. As submitted by counsel for the husband the wife’s “memory appeared poor and she presented as simply unable to recall basic factual matters”.  Although I accept as submitted by counsel for the wife that the wife was unsophisticated in terms of her knowledge and understanding of financial matters it was not only her lack of sophistication and understanding about financial matters which caused me to question the reliability of her evidence.

  2. Not only was the wife’s recollection generally very poor she also seemed intent on tailoring her evidence for the purposes of establishing that after meeting and commencing a relationship she and the husband were in a de facto relationship.  The purpose of her doing so was difficult to understand in circumstances where the parties ultimately having married and jurisdiction being established, it was the nature and extent of their contributions which was relevant not how their relationship might be legally defined. The wife in my view also exaggerated the nature of her contributions and I was ultimately left with little confidence in her evidence.

  3. I also had significant reservations about the evidence of the wife’s son Mr N. Although I accept as submitted by counsel for the husband that he appeared to have a financial interest in the proceedings in my view of greater concern was the artificiality of his alleged loan to his mother and the terms of that loan, in circumstances where the loan would not be repayable in the event that the wife receives a property settlement of less than $20 million or that in the event that she receives more than $20 million, he would be entitled to 50 per centum of any amount above $20 million.

  4. I found Mr N’s evidence evasive and disingenuous. I am satisfied that his recall of events depended upon how he perceived his answer would be likely to assist or damage his mother’s case. I found him to be an unreliable witness whose evidence added little to his mother’s case.

  5. Although I had somewhat less reservations about his brother Mr L’s evidence I am satisfied that he was similarly focused on advancing the wife’s case and in my view was not a reliable witness.

  6. In all of the circumstances I am not satisfied, as submitted by counsel for the wife, that I should not accept the husband’s evidence in the absence of objective corroborative evidence and to the contrary where there is a dispute between the evidence of the wife, her witnesses and the husband, I generally prefer the husband’s evidence.

The Parties Relationship

  1. As previously discussed both the nature and duration of the parties relationship was a significant issue in this case, particularly in relation to the way in which the wife put her case.  

  2. It is the wife’s case that the parties commenced a meaningful sexual relationship in August 2002 and, although they maintained separate homes until their marriage, save for the period when they lived together at the C Street Property, were in a continuous relationship as couple living together on a genuine domestic basis as defined by s 4AA of the Act.   

  3. Counsel for the wife submitted that the nature and duration of the parties relationship is of “considerable importance” in the assessment of contributions on the basis that:

    (a)It identifies the roles which each party wanted the other to adopt in the relationship;

    (b)The length and extent of the relationship is important in assessing relative contributions particularly where as in this case there has been a significant contribution of capital by one party during the relationship; and

    (c)It is also relevant to assessing the contributions to the welfare of the family.

  4. Whilst I accept that the nature and duration of the relationship is relevant for the purposes of the court’s assessment of the parties contributions during the relationship, the focus of the wife’s case being her non-financial contributions, in my view it is the analysis of the contributions themselves rather than whether the relationship can be described as a de facto relationship as defined in s 4AA of the Act, that is relevant. It is clearly the case that whether parties are married or in a de facto relationship as it is defined or in some less formal relationship prior to their marriage there needs to be an assessment of their contributions in the context of that relationship. Although it may not always be the case it is likely that the longer the period of the relationship the greater a homemakers contributions are likely to be over that period however that will of course depend upon the particular facts of the case. The other party’s contributions must also be assessed in the same context.

  5. Counsel for the wife referred me to the decision of the Full Court of the Family Court of Australia (“Full Court”) in Wallis v Manning (2017) FLC 93-759 (“Wallis”) in support of their submission with respect to the significance of the length and extent of a relationship in assessing the respective contributions of the parties when there has been a substantial capital contribution.

  6. What the Full Court in Wallis was referring to in particular was where there had been significant contributions of capital early in the marriage. However the Full Court in Wallis also said referring to the Full Court decision of Fogarty, Maxwell and Nygh JJ in Lee Steere and Lee Steere (1985) FLC 91-626 (at 80-078) that “the longer the duration of the marriage, depending on the quality and extent of her contribution, the more the proportionality of the original contribution is reduced,” making it clear that there must be an assessment of the quality of the contributions themselves. The parties’ contributions in this case are relevant irrespective of whether the parties were in a de facto relationship.

  7. It is not in dispute that at the time the parties commenced their relationship the husband was living at I Street, Suburb A (“I Street”) and the wife was living in the C Street Property she owned. It was the wife’s evidence that she and the husband split their time between the C Street Property and I Street spending most nights at I Street as it offered more privacy. The wife said she kept some of her clothes and personal items at I Street during this time. The husband’s evidence with respect to this period prior to the sale of I Street was that the wife would stay overnight one, sometimes two nights per week and that he would stay overnight at the C Street Property on approximately one night every other week. 

  8. In September 2002 the husband was diagnosed with cancer and the wife said that she offered him comfort and cared for him at I Street following surgery to remove his cancer. The husband, whilst acknowledging that the wife had visited him following the surgery said that she had exaggerated the extent of her physical care and their relationship at that time.

  9. The wife also deposed that she cleaned and tidied I Street, did the husband’s laundry and ironing, purchased groceries for both I Street and the C Street Property and they either had dinner at C Street with her mother and sons or that she packed food and she and the husband ate together at I Street. Although the husband agreed that the wife had assisted him with domestic tasks from time to time, he also deposed that he employed both a cook and a cleaner during this period, the inference being that he was not reliant upon the wife to the extent she asserted. Although the wife conceded in cross-examination that the husband had a cleaner when he was living at I Street, she repeatedly said that “we” had a cleaner. I assume the purpose of her doing so being to reinforce her case that they were in a de facto relationship at the time.

  10. It is common ground that after settlement of the sale of I Street in May 2003 the husband moved into the C Street Property where the wife lived with her mother and sons. I am satisfied that the husband’s move to C Street is evidence of a change in the nature of their relationship and a sign of greater commitment at that time.

  11. The husband deposed that after an overseas trip in July 2004 he and the wife discussed difficulties they were having in their relationship and in February 2005 they decided to separate. He said that following separation he rented the Suburb J Apartment and moved there with his son Mr P who had previously spent time with him at the C Street Property.  The husband’s evidence was that he only saw the wife occasionally after moving to the Suburb J Apartment and when his father died on 20 December 2005. The husband also said that he employed a cook and a house cleaner during this period.  

  12. The wife’s evidence was that during the period the husband lived at the Suburb J Apartment they continued to spend the nights together at the Suburb J Apartment when the husband’s son was with him and when he stayed at his mother’s they would stay at the C Street Property. At paragraph 73 of the wife’s trial Affidavit she said as follows:

    …On most days my late mother and I cooked food at the C Street House which I packed up and took to the Suburb J Apartment for dinner with Mr Vyner and Mr P. Occasionally Mr Vyner, Mr P and I had dinner with my sons and late mother at the C Street House. Again, I was running two homes doing similar tasks that I had done when Mr Vyner owned the I Street House.

  13. Prior to his death the husband’s father purchased the Suburb F Property for the husband and following settlement in February/March 2006 he and his son moved into the Suburb F Property.

  14. The husband also said that although he and the wife reconnected at the time of his father’s death and rekindled their relationship, the relationship was not as it had been when they lived together in C Street. He said that they would stay together two to three nights per week, usually at the Suburb F Property. The husband said that in April 2008 the wife returned the jewellery and watches he had given her and that they separated again between April and October of that year. Although they reconciled once again they maintained separate residences staying together two or three nights per week until their marriage when the husband says the wife moved to Suburb F.  The husband said that during this time he employed both a cook and a cleaning lady as he had done when he lived in both I Street and the Suburb J property.

  15. The wife on the other hand said that she and the husband lived together in the Suburb F property as they had done in Suburb J, staying at the Suburb F Property when Mr P was staying with the husband and that they would usually stay at the C Street Property when Mr P was with his mother. She described herself as once again running two homes. 

  16. Counsel for the wife was critical of the husband’s evidence with respect to the history and duration of the relationship submitting that in circumstances where the wife’s evidence was barely challenged in cross-examination, the evidence of Mr L and Mr N was unchallenged, the wife’s evidence was corroborated by objective documentary evidence and the husband’s evidence was contradicted by his son’s evidence the wife’s evidence should be preferred.

  17. For the reasons previously discussed I generally preferred the evidence of the husband over that of the wife and her witnesses. This includes in relation to the nature of their relationship notwithstanding that the husband had some of the dates wrong. In my view the wife was focused on establishing that she and the husband had been in a de facto relationship as defined by the Act for the whole of the period prior to the marriage rather than focusing on her contributions and in my view overstating her case in order to do so.

  18. Apart from the two periods when the husband says there was a gap in their relationship, there was no dispute that the parties were in a relationship, albeit I am not satisfied that it was a de facto relationship or as committed as the wife describes. It would not in my view be surprising that the parties would leave personal items at each other’s homes or that there would be emails sent by the husband to the wife, photographs and travel documents that demonstrate an intimate and affectionate relationship. However these are not matters which in my view establish that the husband and the wife were in a continuous relationship living together on a genuine domestic basis. There would also in these circumstances and given the way in which the husband put his case, have been little purpose in the wife being cross-examined at length in relation to these matters.

  19. In so far as it was submitted that the husband’s son contradicted his evidence that evidence was as follows:

    MR MEREINE:   Yes.  And you were celebrating these family events with Ms Balken and her family, because, in fact, in the second half of 2005 your father and Ms Balken were still in a relationship together, weren’t they?‑‑‑From what I recall they weren’t.

    From you recall they weren’t?‑‑‑Yes.

    Now, having ‑ ‑ ‑?‑‑‑I don’t remember exactly.

    Right.  But having seen the photos I’ve just showed you now, do you accept that it is the case that your father and Ms Balken were still in a relationship in the second half of 2005?‑‑‑It appears they may have been.

    Thank you.  And as they may have been or were still in a relationship during the second half of 2005 Ms Balken in fact came over to the Suburb J apartment, didn’t she?‑‑‑I recall her being there once, and Mr L being there once as well. 

    You don’t – but you don’t say, do you in your affidavit, that she never came to the Suburb J apartment?‑‑‑No.  In the affidavit I said I recall them both being there once. 

    You used the words “rarely saw”, don’t you?‑‑‑I think so.

    And so ‑ ‑ ‑?‑‑‑I don’t recall exactly.

    ‑ ‑ ‑ it’s possible, isn’t it, Mr Vyner, that Ms Balken, as she was still in a relationship with your father, came to the Suburb J apartment more frequently than you may recall?‑‑‑It is possible.

    And it’s also possible, isn’t it, that she stayed at the Suburb J apartment?‑‑‑It is possible.  Yes.

  20. Significantly in my view the husband’s son, who was described by the wife’s counsel as a truthful witness, said that his recollection was that the husband and wife were not in a relationship when he and the husband lived in the Suburb J Apartment, that he could remember the wife and Mr L being at the Suburb J Apartment on one occasion but that it was possible that the husband and wife were in a relationship and that she had stayed there. I do not accept as submitted by the wife that this evidence contradicted the husband’s evidence or that based upon this evidence I should not accept the husband’s evidence.

  21. I am not satisfied, even if that was the relevant question to be determined, that the husband and the wife were in a de facto relationship for the whole of the period between the commencement of their relationship and their marriage.  Although it is not necessary for parties to a de facto relationship to live together on a full time basis I am not satisfied that in this case that there was “the merger of two individual lives into lives as a couple” as described by Murphy J in Jonah & White [2011] FamCA 221 (at [30]) (“Jonah”) for the whole of the period between the parties commencing a relationship and their marriage in 2011.  

  22. However I am satisfied that apart for some months in 2005 and again in 2008 the husband and the wife were in a relationship for the whole of the period between the commencement of that relationship in 2002 and their final separation in March 2017. However in my view the evidence does not establish that the relationship was as the wife asserted for the whole of that period. I accept that the relationship changed and was likely a more committed relationship when the husband moved into the C Street Property. But that having lived together at the C Street Property, the nature of the relationship changed again when the husband left the C Street Property and moved to the Suburb J Apartment with his son Mr P, the parties thereafter maintaining separate residences. The very fact that the parties maintained separate residences in my view suggests a somewhat different relationship. However I am also satisfied that the nature of their relationship changed once again when the parties became engaged at which time they were committing to a life together as husband and wife.

  23. Ultimately the parties having married it is the contributions they made both prior to and following the marriage that are relevant. 

Is it Just and Equitable to make Orders?

  1. In Stanford v Stanford 247 CLR 108 (“Stanford”) the majority of the High Court of Australia (“High Court”) considering the requirements of s 79 said at para [37]-[40]) as follows:

    [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…The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

    [38]Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed (25) that a power (26) to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”…

    [40]Thirdly, 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…

  2. The Full Court in Stanford further held (at [41])

    [41]Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

  1. In order to consider whether it is just and equitable to make an order or orders pursuant to s 79 of the Act the court must first identify “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.” (Stanford at [37]).

The Asset Pool

  1. Although there was some agreement as to the asset pool and the value of property in that pool there were also a number of significant disputes that required determination. To avoid any unnecessary confusion between the parties respective versions of the asset pool I propose to use the asset pool annexed to the wife’s written submissions (“Annexure B”) as the working document for the purposes of the determinations I must make highlighting where there are differences between the husband and the wife’s positions.

Asset/Liability

Wife’s Value (AUD)

Husband’s Values (AUD)

1.         

RR Pty Ltd ATF The Vyner Family Trust

($2,210,945)

($2,210,945)

2.         

RR Pty Ltd ATF The The Mr Vyner Family Trust No.2

$10

$10

3.         

SS Company ATF TT Trust

$6,613,235

$5,286,957

4.         

SS Company ATF Mr Vyner Family Trust

$1,181,125

$6,146,777

5.         

DQ Inc

$7,264,811

Wrongly included in the figure directly above.

6.         

Mr Vyner ATF VV Trust

$2,758,278

$2,708,570

7.         

UU Pty Ltd

$1,156,500

$1,156,500

8.         

WW Inc.

$2,055,796

$903,792

9.         

BH Pty Ltd

$2,461

$2,006

10.       

YY Ltd

$185,996

$0

11.       

ZZ Pty Ltd

$2,876,936

$2,876,936

12.       

AB Pty Ltd ATF The Vyner Family Trust

$7,722,020

$0

13.       

V Pty Ltd ATF The HH Trust

$10,251,772

$3,422,222

14.       

AC Pty Ltd ATF The KK Trust

$6,797,726
(which at the time of
valuation includes the
BL City proceeds that
have now been
distributed to BF Pty Ltd)

$4,884,962

15.       

AD Pty Ltd ATF AF Property Trust

$5,940,781

$0

16.       

AG Pty Ltd ATF AK Trust

($31,724)

($31,724)

17.       

Equity in the BJ Street Property

$2,345,588

$0

18.       

Funds lent by the Husband to the Wife

$2,000,000

$2,000,000

19.       

Wife’s loan repayable to the Husband from her share of the G Street Property proceeds

($2,000,000)

Not known

20.       

Funds held in the Kenna Teasdale Account (balance of the proceeds of sale

from the Suburb F Property)

$626,037

$626,037

21.       

Husband’s Motor Vehicle 1

$32,000

$32,000

22.       

Husband’s Motor Vehicle 2

$80,000

$80,000

23.       

Husband’s Motor Vehicle 3

$10,000

$10,000

24.       

Husband’s Motor Vehicle 4

$10,000

$10,000

25.       

Husband’s Motor Vehicle 1

$27,000

$27,000

26.       

Equity in the Husband’s leased Motor Vehicle 5,

Motor Vehicle 6 and Motor Vehicle 7

$50,725

$50,725

27.       

Loan owing to the parties from the Companies and Trusts

$2,184,822

$2,179,581

28.       

Add back Mortgage over the Suburb F Property which was discharged on settlement, including the equity of
$1,230,000 unnecessarily depleted from the Suburb F Property since the proceeding commenced

$2,730,028

$1,678,360

29.       

Wife’s partial property settlement

$172,371

$172,371

30.       

Wife’s loan owing to Mr N  (Investment Loan)

($968,491)

$0

31.       

Tax liability for distribution from the BL City proceeds of sale

($1,463,785)

($1,465,000)

32.       

Wife’s superannuation

$200,914

$200,914

33.       

Husband’s superannuation

$175,533

$175,000

34.       

Contents of the Summit Property

$4,248,824

Not known

35.       

Wife’s contents

$20,000

Not known

Total

$63,046,344

$30,923,051

  1. Mr AT was instructed by the husband and wife to prepare a valuation of the various entities they control or in which they have any interest. Mr AT’s first report dated 7 August 2019 and his second report, prepared in response to questions put to him on behalf of both the husband and wife, dated 15 October 2019 are both in evidence before me. Mr AT was not required for cross-examination. The following items in the asset pool were the subject of dispute and required determination.

Conversion Rate

  1. When preparing his report Mr AT used a USD conversion rate of 0.78. It was the wife’s case that as the Australian dollar had depreciated significantly since Mr AT completed his valuation if the US dollar values were to be converted at that rate the husband would receive a significant windfall. Counsel for the wife also referred to the husband’s failure to produce more recent accounts. On that basis US dollar values were converted for the purposes of the wife’s case at a rate of 0.68. The husband similarly applied an updated exchange rate albeit he converted the US dollar values at a rate of 0.69.

  2. The matter was listed for mention on 2 September 2020 and again on 9 September 2020 to give the parties the opportunity to either agree upon a conversion rate to be applied or to make submissions as to the rate they each said the court should apply.

  3. Counsel for the wife submitted that although pursuant to s 144 of the Evidence Act it was open to the court to ascertain the current conversion rate and apply that to the US dollar values in this case those values should be converted using a conversion rate of 0.68 as they had done in their final written submissions. Counsel for the wife referred me in support of this submission to the decision of the Full Court in Summitt & Summitt And Ors (Re-Opening) [2009] FamCA 365 (“Summitt”) and in particular to paragraph 57 where the Full Court said as follows:

    …The assumption at trial (in the absence of evidence to the contrary) that values have not moved in the period between valuation and trial involves the assumption – or, at least, the acceptance – that whatever economic and other exigencies may have been present in that period will be ignored for the purposes of arriving at the value of property at the trial.

  4. In Summitt the husband was seeking to reopen his case and adduce further evidence of value in circumstances where he said there had been a reduction in the value of the real property the subject of the proceedings. The circumstances in this case are very different. No-one is seeking to re-open the case so as to adduce further evidence of value however both parties made their final submissions on the basis that the court should apply the conversion rate as at the date of their submissions. The basis of the wife’s case being that it would not be just and equitable for the husband to receive a windfall because of movements in the value of the Australian dollar. 

  5. In my view taking the wife’s submission to its logical conclusion the conversion rate should be the rate applied by Mr AT. I do not accept that it is just and equitable on the one hand to apply a conversion rate different to that applied by Mr AT because to do otherwise would result in the husband, as a consequence of the depreciation of the Australian dollar, receiving a windfall and to then argue on the other hand that further variations in that conversion rate should be ignored. To do so in the circumstances of this case would arguably create a windfall for the wife.

  6. In all of the circumstances I propose to apply the conversion rate applicable as per the Reserve Bank of Australia immediately prior to judgement to convert the US dollar values. That rate is 0.7084 as at 29 September 2020.  The conversion rate for Country AX local currency on that date is 22.47.

Item 3: The SS Trust ATF - TT Trust

  1. The first item in the wife’s table about which there is a dispute is TT Trust. This is the trust settled by the husband and wife which holds the G Street Property. The G Street Property was purchased after the husband and wife relocated to the USA in 2012 following their marriage. Pursuant to the trust deed the parties each have a 50 per cent interest in the trust and are each responsible for 50 per cent of the trusts expenses. The parties lived in the G Street Property until their separation in March 2017.

  2. On 11 April 2018 Johns J made orders for the sale of the G Street Property.  The property remains unsold notwithstanding the price has been significantly reduced. The wife has included the property in the pool at a figure of AUD$6,613,235 using a conversion rate of 0.68. The wife’s figure is based upon the current listing of USD$6,997,000. It is subject to a mortgage to AL Bank of USD$2,500,000 which includes both a loan and a line of credit leaving net equity of USD$4,497,000. This figure does not make any allowance for any commission or tax that might be payable. 

  3. The husband included the G Street Property in the pool at a figure of AUD$5,286,957 assuming a selling price of USD$6,700,000 and deducting the mortgage of USD$2,500,000, agents commission of 6 per centum (USD$400,000) and Capital Gains Tax (“CGT”) of USD$150,000 arriving at a figure of USD$3,650,000 which has been converted to a figure of AUD$5,286,957 using a conversion rate of 0.69.

  4. If the commission and CGT were deducted from the wife’s figure her figure using a conversion rate of 0.68 would be AUD$5,804,411. The difference would be in these circumstances the lower sale price adopted by the husband and the different conversion rates.

  5. It is the husband’s case that in the event that the court accepts his case with respect to the principles of Stanford the proceeds of sale of the G Street Property will be divided in accordance with provisions of the trust subject to any amounts he is able to establish that he is owed. On that basis he submitted that it would not be necessary for the court to analyse how the proceeds of sale of the G Street Property should be applied. I accept that this would be the case.

  6. I also accept as submitted by counsel for the husband that if the court does not accept his client’s Stanford argument that the parties entitlements and any amount owed to the husband is academic and not relevant for the purposes of quantifying the asset pool.

  7. Ultimately whichever course the court adopts the G Street Property is being sold and hence the value attributed to it in terms of the asset pool is a guide.  In circumstances where the property has not sold at the list price upon which the wife has based her figure and given that whatever price the property is sold for there will be agent’s commission and CGT payable I am satisfied the husband’s figure is a more helpful guide and propose to include that figure in the asset pool using a conversion rate of 0.7084 which results in a figure of AUD$5,152,456.

Items 4 & 5: SS Company ATF the Mr Vyner Family Trust and DQ Inc

  1. The husband has included the Vyner Family Trust also known as the BP Trust in the asset pool at AUD$6,147,777 which he says is based upon paragraph 86 of Mr AT’s second report dated 15 October 2019 and a conversion rate of 0.69. The husband’s figure includes the value of DQ Inc whereas the wife has included the value of DQ Inc in her table of assets as a separate item. At paragraph 97 of that report Mr AT sets out a table of what he describes as the parties interests in the Balken & Vyner Group, in which he values DQ Inc separately which is the course the wife has adopted.  Mr AT as referred to in his second report dated 15 October 2019 valued DQ Inc at USD$4,940,071. Applying the wife’s conversion rate the figure is AUD$7,264,811. Based upon the conversion rate used by the husband of 0.69 that figure would be AUD$7,159,253. Applying the updated conversion rate of 0.7084 that figure is AUD$6,973,561. Consistent with Mr AT’s report I propose to include DQ Inc as a separate item at that figure.     

  2. The Mr Vyner Family Trust was declared on 31 July 2015. SS Company which was registered on 14 March 2011 is the trustee. The beneficiaries of Mr Vyner Family Trust are the husband, the wife, the husband’s son Mr P, the X Trust and any lineal descendent of the husband. Mr AT assumed for the purposes of his report, and it is not disputed, that the husband and the wife controlled Mr Vyner Family Trust.  Mr Vyner Family Trust has investments in BW Holdings and the VV Group which were also valued by Mr AT. 

  3. The dispute leaving aside the different conversion rates the parties used primarily relates to the ownership of BW Holdings which in turn owns 100 % of BG Pty Ltd and BZ Company and how that impacts on the valuation of Mr Vyner Family Trust. Mr AT initially prepared his valuation on the basis that Mr Vyner Family Trust owned 100% of the shares in BW Holdings. Although counsel for the wife was critical of the husband’s evidence in cross-examination with respect to the ownership of the BW Holdings shares in my view that criticism lacked foundation in circumstances where the husband has repeatedly deposed to Mr Vyner Family Trust owning 40% of BW Holdings, confirming that evidence in cross-examination and significantly as confirmed in the joint letter of instructions to Mr AT. In any event what the husband said in re-examination is not determinative of the issue in dispute. 

  4. The wife’s case is that when the Mr Vyner Family Trust’s interest in BW Holdings is reduced from 100% to 40% the BW Holdings deficiency is reduced from USD$1,929,703 to USD$771,881.20 which when deducted from the value of VV Group results in Mr Vyner Family Trust having a value of USD$803,162. Anticipating the wife’s submission with respect to the impact of Mr AT having incorrectly assumed that Mr Vyner Family Trust owned 100% of BW Holdings, counsel for the husband submitted that he had also incorrectly deducted the deficiency in BW Holdings from the balance sheet of Mr Vyner Family Trust as if it were a debt of Mr Vyner Family Trust. Counsel for the husband submitted that when a company owns shares in an entity with a negative balance sheet those shares have no value to the owner. Whilst in my view there may be some substance to that submission that is how Mr AT dealt with the deficiency when he assumed that Mr Vyner Family Trust owned 100% of Holdings and as submitted by counsel for the wife the husband having the opportunity to ask Mr AT questions did not take issue with him having done so. Nor was Mr AT required for cross-examination. In these circumstances Mr AT’s evidence is unchallenged and I propose to accept that evidence subject to the agreed position that Mr Vyner Family Trust has only a 40% interest in BW Holdings. On this basis I am satisfied that for the purposes of identifying and valuing the pool based upon the evidence of Mr AT the value of Mr Vyner Family Trust is USD$803,165.  Using a conversion rate of 0.7084 the figure is AUD$1,133,773.  

  5. Counsel for the husband further submitted that the fact that BG Pty Ltd has a negative balance sheet does have an impact on the pool in circumstances where it has assets of $318,603 and it owes UU Pty Ltd and BF Pty Ltd $2,709,930, a deficiency of $2,391,127 making the loans from UU Pty Ltd and BF Pty Ltd to that extent unrecoverable.  It was the husband’s case that BG Pty Ltd being unable to repay BF Pty Ltd, BF Pty Ltd in turn having a deficit would write off the value attributed to BF Pty Ltd and be unrecoverable by the Mr Vyner Family Trust impacting on the value attributed to it by Mr AT. However as submitted by counsel for the wife, these matters were not put to Mr AT and in my view the court should not speculate.  In any event as counsel for the husband ultimately submitted “the error in percentage regarding Holdings makes no difference, and the other matters are errors of presentation, with no ultimate impact on the bottom line.  

Item 6: Mr Vyner ATF VV Trust USA

  1. Mr AT valued VV Trust USA at USD$1,868,913 (paragraph 86 of second report). The husband using a conversion rate of 0.68 included a figure of AUD$ 2,708,570. The wife’s figure of AUD$2,758,278 is based upon USD$1,875,629 using a conversion rate of 0.69. Using a conversion rate of 0.7084 the value of VV Trust is AUD$2,638,217 and I have included it in the asset pool at that figure.

Item 8: WW Inc. Group

  1. Mr AT valued WW Inc. at USD$1,397,941. The valuation is not in dispute. The dispute is in relation to whether 100% of that valuation should be included in the pool or whether as the husband deposes he only has a 50% interest in WW Inc.. I note that as submitted by counsel for the wife the husband’s evidence with respect to this issue is not consistent with the joint letter of instruction to Mr AT which described the husband as “the sole shareholder”. I also note that the husband did not put any questions to Mr AT about the ownership of WW Inc..

  2. In his second trial affidavit the husband deposed that he owns 50% of the shares in WW Inc. and that Mr BX owns the other 50%.  He annexed to this affidavit a copy of a Promissory Note he and Mr BX had signed. The Promissory Note which is dated 1 July 2013 was purportedly signed on 19 November 2013. That Promissory Note provided that Mr BX having advanced $300,000 to WW Inc., the outstanding balance of that loan was to bear interest in arrears until payable as set out the schedule to the note and that in addition Mr BX was entitled to a contingent interest of 50% of the net proceeds of sale of each of two properties owned by WW Inc..  

  3. Counsel for the wife submitted that the circumstances surrounding the creation of the Promissory Note were questionable having regard to the fact that it was dated 1 July 2013, although purportedly not signed until 19 November 2013, and yet referred to the property located at CD Street K City, there being no proposal to purchase that property until early 2015 and the property not having been acquired until June 2015.

  4. In cross-examination the husband said in summary that Mr BX paid him the money on the basis that the intention was to invest in a property and that CD Street was named because the husband had been told about the property and hoped in due course to acquire it or if not that property some other property. He also said that they signed the Promissory Note so that Mr BX’s girlfriend would know there was money owing to her if something were to happen to Mr BX.

  5. I accept as submitted by counsel for the wife, the Form 2553 signed by the husband and his 2016 and 2017 US Tax Returns all filed with the US Department of Treasury Internal Revenue Service (IRS) describe the husband as owning 100% of the shares in WW Inc. and that, although in my view of less significance, the letter signed by Ms CF to the US Embassy in support of the husband’s US Treaty Investor Visa application attributed the USD$400,000 invested in WW Inc. to the husband. Although that would not in all of the circumstances of this case lead me to necessarily conclude that I should accept that the husband is the sole shareholder it is also the case as submitted by counsel for the wife and acknowledged by counsel for the husband that even if Mr BX did advance $300,000 to WW Inc. the Promissory Note entitles Mr BX to half the value of the two named properties rather than ownership of half the shares. In my view those shares remain the property of the husband.

  6. Even having regard to the evidence of the payments made by Mr BX which I am satisfied on the balance of probabilities are likely to have been made in accordance with the Promissory Note, as submitted by counsel for the wife there is no evidence as to what if any of the funds advanced remain outstanding.  These are matters that could have been put to Mr AT and the husband could have adduced evidence from Mr BX. In all of the circumstances and doing the best I can on the evidence before me I am satisfied as submitted by counsel for the wife that the entire shareholding should be included in the asset pool. Using the conversion rate of 0.7084 the value is AUD$1,973,378.

Item 9: BH Pty Ltd

  1. The difference between the parties’ positions in relation to BH Pty Ltd was minimal and appears to be a result of the conversion rate they each used.  

  1. In these circumstances even if the correction of the errors required the Court to reconsider the exercise of its discretion it still has the power to do so and arguably, to bring some finality to the litigation and avoid any injustice, should do so. In my view the wife's case ignores the fact that although her entitlements will be less so will the husband's. The corrected albeit approximate asset pool is still substantial as are the party's entitlements and the husband will receive $26,723,727 of that corrected pool rather than rather than $30,087,731 and the wife will be entitled to approximately $8,907,909 rather than $10,029,243. Although I am satisfied that to make orders based upon my findings but an incorrect pool would not achieve the intended outcome and would do an injustice to the husband, I am satisfied that the orders based upon the corrected pool would be just and equitable reflecting both my findings as to the parties contributions and having regard to the s 75(2) factors. The proceeds of sale of the G Street property will also be divided as to 75/25 in favour of the husband and there will be an adjustment in the wife's favour on the same basis for her share of the value of the furniture and chattels in the G Street property and the value of the property owned by YY Ltd in Country AX.

  2. In my view the correction of what both the husband and the wife acknowledge was an accidental error does not in the circumstances of this case require the court to re-exercise its discretion and the Reasons will be amended accordingly pursuant to the slip rule.

I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 September 2020 and amended with a further twenty-seven (27) paragraph addendum on 18 November 2020.

Associate: 

Date of Judgment:  30 September 2020

Date of addendum: 18 November 2020

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Jonah & White [2011] FamCA 221
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365