BOK & BOK
[2012] FMCAfam 377
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOK & BOK | [2012] FMCAfam 377 |
| FAMILY LAW – Property – property purchased by husband’s parents who reside in England – assessment of contributions – asset by asset approach appropriate – s.75(2) factors. |
| Family Law Act 1975, ss.75(2), 78, 79 Foreign Acquisitions and Takeovers Act 1975 |
| Lee Steere & Lee Steere (1985) FLC 91-626 Hickey & Hickey (2003) FLC 93-143 AJO v GRO (2005) FLC 93-218 D & D (2003) FamCA 473 at 49 Norbis & Norbis (1986) FLC 91-712 C & C (2005) FLC 93-220 |
| Applicant: | MR BOK |
| Respondent: | MS BOK |
| File Number: | ADC 4034 of 2009 |
| Judgment of: | Kelly FM |
| Hearing dates: | 29 & 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Tredrea |
| Solicitors for the Applicant: | Angela Ferdinandy Solicitors |
| Counsel for the Respondent: | Ms M Dickson |
| Solicitors for the Respondent: | R G Eckermann & Co |
ORDERS
In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property pursuant to Part 8 of the Family Law Act 1975 as amended:
Within 60 days of the making of this order the wife do pay to the husband care of his solicitors the sum of FORTY SIX THOUSAND ONE HUNDRED AND EIGHTY TWO DOLLARS ($46,182) by way of bank cheque.
Contemporaneously with the above payment, the following shall occur:
(a)the wife transfer to the husband all her estate and interest in the property situate at [1] Property P and do execute a Memorandum of Transfer in registrable form forthwith upon the same having been tendered to the wife, such Memorandum of Transfer to be prepared at the husband’s cost and submitted to the wife within 14 days of the date of this order;
(b)the husband transfer to the wife all his estate and interest in the properties situate at [2] Property P and Property F and do execute a Memorandum of Transfer in registrable form with respect to each property, such Memoranda of Transfer to be prepared at the wife’s cost and submitted to the husband within 14 days of the date of this order;
(c)the wife do cause to be discharged the ING and BankSA mortgages secured against the properties at [2] Property P and Property F.
The wife shall exonerate the husband and shall keep him exonerated in relation to:
(a)any loans or alleged loans owed to her father Mr T;
(b)any personal liabilities in her sole name;
(c)any rates, taxes, levies and any Capital Gains Tax arising in relation to the property at Property F;
(d)any rates, taxes and levies in relation to the property at [2] Property P.
The husband shall exonerate the wife and shall keep her exonerated in relation to:
(a)any loans or alleged loans owed to his parents Mrs B and Mr B;
(b)any personal liabilities in his sole name;
(c)any liabilities arising from his business [A] Pty Ltd;
(d)any rates, taxes, levies and any Capital Gains Tax arising in relation to the property at [1] Property P.
Within 30 days the husband shall do all things necessary to transfer his interest in the Toyota Corolla motor vehicle to the wife.
Thereafter the parties shall retain all assets in their possession and control free from any further claim by the other party.
The Court allocate, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of THIRTY EIGHT THOUSAND, FIVE HUNDRED AND EIGHTY SEVEN DOLLARS ($38,587) to the husband out of the wife’s interest in [P] Superannuation.
Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable out of the wife’s interest in [P] Superannuation the trustee shall:
(a)pay to the husband or his legal personal representative an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b)make a corresponding reduction in the entitlement the wife would have had in [P] Superannuation but for this order;
(c)this order has effect from the operative time;
(d)the operative time for these orders is four (4) business days after service of final orders on the trustee of [P] Superannuation;
(e)the trustee of [P] Superannuation shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the husband in accordance with these orders;
(f)the parties will equally pay any fees due to the superannuation fund aforesaid on account of splitting the superannuation interest.
In the event the wife defaults in payment to the husband then she shall pay interest thereon at a rate of 10.75% per annum and should the default continue for a period of more than 60 days, then the properties situate at Property F and [2] Property P shall be sold and the net proceeds of sale shall be divided as follows:
(a)to the husband in the amount owing to him together with all interest that has accrued thereon and any costs of and incidental to enforcement of these orders; and
(b)the balance thereof to the wife.
The parties shall sign all necessary documents within seven (7) days from the same being presented to them.
Should either party fail to sign all necessary documents or do all things necessary to give effect to these orders then a Registrar of this Court may sign any documents to give effect to this order upon filing of an affidavit establishing a party’s failure to comply with same.
IT IS NOTED that publication of this judgment under the pseudonym Bok & Bok is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4034 of 2009
| MR BOK |
Applicant
And
| MS BOK |
Respondent
REASONS FOR JUDGMENT
The parties met in 1996 while the wife was travelling in the United Kingdom on a working holiday. They returned to live in Australia and were married [in] 2002. Since their separation in October 2008 the parties have been unable to reach agreement regarding the division of the matrimonial assets.
In particular they have been unable to agree whether a property owned by them at [1] Property P should form part of the matrimonial asset pool. The husband argues the property is held by them on trust for his parents; the wife disagrees. It now falls to the Court to determine these matters.
Background
The husband is 36 years old and the wife is 39 years old. The parties lived and worked in the United Kingdom until mid 2000, when they decided to move permanently to Australia.
The parties arrived in Australia in September 2000 and lived with the wife’s parents for approximately 18 months before moving into their own home.
Both parties worked full time during the early years of their marriage. The wife was a qualified [omitted] and worked in that capacity until 2001 before gaining employment in [omitted]. The wife was initially employed at [omitted] before moving on to a position at [omitted].
The husband is a qualified [omitted]. Upon arriving in Adelaide, the husband obtained employment as a subcontractor or employee with various companies, including [omitted]. He completed the first part of his [omitted] licence in November 2000 and extended this [omitted] over the subsequent years. In 2006 the husband established his own business as a self employed [omitted] through his company, [A] Pty Ltd.
In March 2002, the parties purchased a property at [2] Property P for the sum of $185,250. The parties remained living at [2] Property P until their separation.
The husband’s parents travelled out from the United Kingdom to visit the parties in 2002. Following this trip Mr & Mrs B senior decided to purchase a property near to their son and daughter-in-law.
In mid 2003 the property at [1] Property P came on the market for sale. At that time neither the husband nor his parents were either Australian citizens or permanent residents. In accordance with the Foreign Acquisitions and Takeovers Act 1975, they were unable to purchase real estate unless proper permissions were obtained in accordance with that legislation.
Accordingly the property at [1] Property P was purchased in the joint names of the husband and the wife for the sum of $266,000, but all of the associated costs were provided by the husband’s parents. It was understood that [1] Property P was for Mr and Mrs B senior to use as they chose. The property remained available to the husband’s parents during their occasional visits and was not otherwise tenanted.
The husband became an Australian citizen in June 2006 but there was no change to the legal ownership of [1] Property P.
In April 2005, the parties purchased a property at Property F for the sum of $205,000. The purchase price was raised by a loan with BankSA and a further loan with ING, which was subsequently secured against the former matrimonial home at [2] Property P.
Unfortunately the parties’ relationship deteriorated across 2008 and they separated on 3 October 2008. Initially the husband remained in the former matrimonial home but eventually relocated to the premises at [1] Property P. The wife returned to live at [2] Property P and continues to live there.
The wife remained in full time employment until 2009 when she was diagnosed with breast cancer. She has undergone chemotherapy and radiotherapy and fortunately her cancer is currently in remission. However, the treatment has caused her to suffer significant lymphoedema and this condition is ongoing. The wife attempted to resume part time employment in 2011, but her health deteriorated and she was unable to continue. She remains in receipt of sickness benefits.
The husband continues to work as a self employed [omitted]. While he is presently earning a modest income, he gave evidence to the effect that his business is gradually picking up.
Both parties acknowledge that they have received considerable assistance from their respective parents, whether by way of direct financial assistance or through free (or virtually free) accommodation.
The hearing
The husband commenced these proceedings in December 2010. He relies upon the following documents:
a)Amended Initiating Application filed 24 August 2011;
b)Updated Financial Statement filed 16 September 2011;
c)Trial Affidavit filed 16 September 2011;
d)Trial affidavit of Ms H filed 16 September 2011.
The wife relies upon the following documents:
a)Amended Response filed 6 March 2012;
b)Financial Statement filed 6 March 2012;
c)Trial Affidavit filed 6 March 2012;
d)Trial Affidavit of wife’s father Mr T filed 6 March 2012;
e)Affidavit of Dr J filed 6 March 2012;
f)Affidavit of Ms D filed 6 March 2012.
The hearing proceeded on 29 and 30 March 2012. Both parties were available for cross examination, as was Mr T. The wife’s medical witnesses were not required for cross examination, nor was the husband’s supporting witness, Ms H.
I am satisfied that all witnesses gave their evidence honestly and to the best of their recollection.
Legal principles
Section 79 of the Family Law Act 1975 sets out the factors that the Court must consider when deciding an application for property settlement. Various Full Court authorities have confirmed that the Court must follow a number of discrete steps when determining any adjustment of matrimonial property[1].
[1] Lee Steere & Lee Steere (1985) FLC 91-626
First the Court must identify the assets and liabilities arising from the parties’ marriage. Once the asset pool has been identified, the Court must then assess each party’s contribution during the marriage. The relevant factors pursuant to s.79(4)(a)-(c) include the parties’ direct and indirect financial contributions, any other contribution the parties may have made to the “acquisition, conservation or improvement of the matrimonial assets” and their respective contribution to the overall welfare of the family as a whole – what is often described as the “homemaker or parent” contribution.
The third step requires the Court to consider a range of factors set out in s.79(4)(d)-(g) including the matters set out in s.75(2) and the parties’ future needs. Finally the Court must be satisfied that the orders to be made are just and equitable as between the parties in accordance with s.79(2). As was noted by the Full Court in D & D[2]:
“… the task of the court in proceedings under s.79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions.”
[2] D & D (2003) FamCA 473 at 49
Should [1] Property P form part of the asset pool?
In addition to orders for property settlement pursuant to s.79, the husband seeks a declaration pursuant to s.78 that he and the wife hold the property at [1] Property P on trust for his mother, Mrs B. Clearly this issue must be considered and ruled upon before the Court is able to properly identify the matrimonial assets available for distribution between the parties.
If such a declaration were made, this would effectively mean that the husband’s mother holds an interest in [1] Property P. This outcome would be contrary to the terms of the Foreign Acquisitions and Takeovers Act 1975, which prohibits foreign nationals from holding an interest, including an equitable interest, in “domestic properties”, unless the appropriate notification and authorisation has been obtained. Failure to do so in an offence under the legislation. [3]
[3] Foreign Acquisitions and Takeovers Act 1975, ss.12A (re definition of “interest”) and s.26A
There is no evidence to suggest that such an approval was ever obtained by Mrs B at any time since the property was purchased. If this Court were now to declare that the parties hold [1] Property P on trust for Mrs B, this would ignore the legislative intent of the Foreign Acquisitions and Takeovers Act. That is not an outcome that can be supported by the Court and I decline to make the declaration sought by the husband.
Both counsel referred to various authorities regarding the Court’s capacity to make orders in favour of a third party pursuant to s.78, or alternatively pursuant to Part VIIIAA, but there is no need to discuss these authorities further. The husband’s parents cannot hold any interest in [1] Property P, whether legal or equitable, without being in breach of the Foreign Acquisitions and Takeovers Act 1975. Having determined that no declaration can be made in their favour pursuant to s.78, they do not hold any status as third parties whose interests may be affected by any orders made by this Court.
Nonetheless, the wife concedes that the husband’s parents provided the whole purchase price for [1] Property P. The unusual circumstances relating to the acquisition of [1] Property P lead me to adopt an “asset by asset” approach and to consider this property separate to the parties’ remaining tangible assets and their superannuation interests.[4] While the Court more commonly adopts a global approach to its determinations, I am satisfied that assessing the parties’ contributions and the impact of the relevant s.75(2) factors separately with respect to [1] Property P and then to the remainder of the parties’ matrimonial assets will better ensure an outcome that is just and equitable as between the parties.
[4] Norbis & Norbis (1986) FLC 91-712
The asset pool
The parties were able to agree the value of most of their assets and liabilities and I will rule on the issues that remain in dispute. The parties’ superannuation interests should be considered separately in accordance with the preferred approach identified by the Full Court in C & C[5], given the value of their interests is significant comparative to the tangible assets held by the parties.
[5] C & C (2005) FLC93-220
Debt to the wife’s father
The parties agree that the wife’s father has contributed the sum of $23,192 by virtue of payments he has made to the ING mortgage secured over [2] Property P and the sum of $22,320 and $12,556 to the BankSA and ING mortgages secured over Property F. The wife argues these sums paid with respect to the Property F mortgages should be treated as a matrimonial debt.
Neither the wife nor Mr T were cross examined on this point. Mr T clearly considers the payments to be a joint loan to the parties that needs to be repaid. I note there is no loan agreement, nor is there any suggestion that the husband was put on notice regarding either the financial assistance provided by Mr T or his apparent expectation that the parties would repay these funds at settlement.
There is no evidence to suggest that Mr T is likely to demand repayment from the wife, as one of the two “debtors”. Mr T provided the financial assistance he did to ensure his daughter’s ongoing accommodation was secure. He has indicated his willingness to further assist his daughter by refinancing the relevant mortgage debts in their joint names, if needed. Given the wife’s financial circumstances, his assistance will no doubt be crucial in that regard.
In the circumstances I decline to treat the financial assistance provided by Mr T as a loan to the parties and consider it is better dealt with as a direct post separation financial contribution made on the wife’s behalf.
Value attributed to furnishings and the husband’s van
No evidence was called in relation to either topic beyond the parties’ assertions. Accordingly I am unable to make any findings about the respective values and will not include them in the asset pool. I note the claimed values are modest and their exclusion from the asset pool does not undermine my capacity to determine an outcome that is just and equitable between the parties.
The husband conceded during cross examination that the wife’s savings and monies drawn down from the mortgage should not be included within the asset pool. Accordingly, I find the matrimonial assets and liabilities are as follows:
Tangible Assets excluding [1] Property P
[2] Property P
$480,000
Property F
$275,000
Toyota (in wife’s possession)
$5,000
[A] Pty Ltd (hand tools and equipment)
$1,000
Sub total
$761,000
Liabilities
Home loan with ING ([2] Property P)
$172,084
Home loan with ING (Property F)
$76,375
BankSA loan (Property F)
$151,933
Loan from Wife’s father for van
$5,000
Husband’s credit card debt to BankSA
$15,000
Total Liabilities
$420,392
Net tangible assets excluding [1] Property P
$340,608
[1] Property P
$350,000
Superannuation interests
Husband’s superannuation
$4,615
Wife’s superannuation
$81,789
Total superannuation
$86,404
Contributions
A great deal of evidence was heard regarding the parties’ contributions both financial and non financial, direct and indirect. The wife provided detailed evidence regarding the parties’ respective incomes as an indicator of their direct financial contributions to the matrimonial asset pool.
The wife generally earned a higher income than the husband during their married life together. However, the parties must remember the Court does not approach this issue as an arithmetical exercise. In assessing their respective contributions it is equally clear that both parties worked hard during their married life together, whether in the paid workforce or through their efforts in improving, renovating and maintaining their various properties. I am satisfied that both parties directed their efforts and available income to the improvement of their overall financial situation.
The wife was critical of the husband’s work ethic and, in particular, his decision to cease paid employment and set up his own business. She was certainly frustrated by his failure to discuss the financial implications of that decision upon their joint finances. I accept that the husband provided the wife with little information about his business income and outgoings. While we now know the husband’s taxable income in 2008 was $50,257, I accept that the wife had no way of knowing that was the situation at the time.
I am not suggesting the husband was deliberately hiding this information or endeavouring to deceive the wife in any way. His presentation in the witness box indicated that he is relatively unsophisticated when it comes to financial matters and is likely to rely heavily on his accountant or bookkeeper, rather than have the information readily to hand, to then discuss with his spouse.
I reach the same conclusion regarding the financial assistance provided by the husband’s parents. There is no doubt that Mr and Mrs B senior provided significant financial assistance to their son, separate to the purchase of [1] Property P, but I accept the wife remained largely unaware of these payments. The various bank records annexed to the parties’ affidavits indicate that most of these payments were paid to bank accounts under the husband’s control.
The husband claims that his parents provided gifts in excess of $12,000 between 2000 and 2002[6]. The wife queries whether a particular payment on 4 August 2000 in the sum of $5,731 in fact represented the balance of a bank account held in the parties’ name in the United Kingdom, rather than a gift from the husband’s parents. I consider the wife’s explanation is plausible and may also explain why that particular deposit was made into the parties’ joint account rather than into one of the husband’s accounts.
[6] Husband’s trial Affidavit, paragraph 41
The husband has provided various bank records[7] and, by and large, those records confirm many of the payments made by his parents during the marriage. These payments are summarised at the commencement of Annexure G to the husband’s trial affidavit. However it is more likely than not that payments made by the husband’s parents after August 2003 relate to expenses associated with the [1] Property P property.
[7] Husband’s trial affidavit, Annexure G, various bank records showing the provision of, or receipt of payments from his parents
In addition to their ongoing contribution to the outgoings associated with [1] Property P, the husband received further financial assistance from his parents after separation. While these payments were significant, it is difficult to trace these sums directly to the acquisition, preservation and conservation of the general matrimonial asset pool. Rather, I consider these payments were intended to assist the husband as he re-established himself after separation.
The direct financial contributions made by the wife’s father post separation are in a different category. These payments were paid direct to the various mortgage liabilities and have clearly assisted in preserving the parties’ equity in the properties at [2] Property P and Property F.
Regarding the parties’ indirect and non financial contributions, the wife was critical of the husband’s efforts in renovating the former matrimonial home and the Property F property. Clearly there are still significant renovations to be completed at [2] Property P but I consider it is unfair to attribute all of the blame for those incomplete renovations to the husband. As I have already said, I am satisfied that both parties worked hard during their marriage and that they both made a substantial and ongoing effort to improve their overall financial situation.
The wife’s parents also provided direct assistance to the parties from time to time. They provided the parties with free accommodation after their arrival in Australia, which allowed the parties to save the deposit for their home. The wife’s parents also assisted with some of the renovations and ongoing maintenance of the properties.
I conclude that the parties’ indirect and non financial contributions should be assessed as equal.
Taking into account all of the above, I further conclude that the parties’ contributions, taken as a whole, should be assessed at 55% to the wife and 45% to the husband, particularly taking into account the direct financial contribution made on the wife’s behalf by Mr T.
Section 75(2) factors
The wife is 39 years old and the husband is 36 years old. There are no children of the marriage and neither party has any responsibility to support any other person. Neither party has re-partnered. Both parties have endeavoured to live within their means and have received considerable support from their extended family in that regard.
The husband acknowledges that he is in good health and that he anticipates remaining in the workforce for many years yet.
The most significant factor in relation to assessment of the parties’ future needs clearly relates to the wife’s health. The wife was diagnosed with breast cancer in 2009 and has been unable to return to the workforce since that time. Hopefully her cancer will remain in remission, but she nonetheless suffers significant incapacity associated with lymphoedema, a side affect arising from the medical treatment.
The wife has provided medical reports from her treating health professionals. I note the report from her lymphoedema therapist, Ms D[8] indicates that onset of the wife’s condition was rapid and quite severe. Ms D assessed the wife at a stage 2 level and noted that it would usually take many years for the condition to develop to this extent.
[8] Report dated 1 March 2012, annexed to affidavit of Ms D
Ms D is of the opinion that the wife is unlikely to manage any full time work that involves the use of a keyboard and mouse for extended periods, other repetitive activities, or heavy lifting. The wife attempted to return to part time employment in 2011 but was unable to continue due to an exacerbation of her condition.
The wife’s capacity to return to the workforce, even on a part time basis, is uncertain. Her ability to provide for her future financial support may be severely limited by her ill health and she may not be in a position to contribute to further superannuation. It seems likely that the wife will need to rely upon financial assistance from her father if she is to retain the former matrimonial home. She also hopes to retain the Property F property as an investment property to provide some level of financial security in the future, but again, this is dependent upon financial assistance from her father.
By contrast, the husband will continue to be able to earn an income and considers his business is slowly improving. He is likely to remain in the workforce for many years yet. At present he has the benefit of free accommodation at [1] Property P, which is a considerable advantage.
The husband gave evidence that this property will need to be sold as his parents wish to recover their investment, but he did not provide any evidence from either of his parents in that regard. Indeed, he chose not to rely upon the affidavit sworn by his mother for the purposes of the hearing. In the absence of any such supporting evidence, I consider it likely that the husband will enjoy the ongoing use of the property at [1] Property P.
On balance, I conclude that the wife should receive a significant adjustment on account of s.75(2) factors, in the range of 15%.
Findings regarding [1] Property P
The assessment of the parties’ contributions to this property is vastly different. There is no dispute that the husband’s parents provided the whole purchase price for the property and have met all, or virtually all, of the ongoing costs and outgoings associated with the property. However, Mr and Mrs B senior have not intervened in these proceedings, nor has the husband sought to rely upon any affidavit filed by either of them. This situation limits the Court’s capacity to make findings about the likely disposition of this property, once these proceedings are finalised.
The wife’s status as a Australian citizen was vital to the property being acquired and to that extent, the wife’s direct non financial contribution to this acquisition is significant. It is difficult to quantify this contribution in percentage terms but any assessment of the wife’s contribution to the property cannot overshadow the overwhelming direct financial contribution made by the husband’s parents. I conclude that the wife’s contribution should be assessed at 5%, which reflects roughly 20% of the increase in value calculated from the date of purchase to the trial date.
I am satisfied that my findings regarding a 15% adjustment on account of s.75(2) factors should also apply. On that basis I find the wife’s interest in this property for the purposes of property settlement is assessed at 20% and the husband’s interest is assessed at 80%.
Superannuation
The wife proposes that the parties’ superannuation interests be equalised by way of a splitting order in the husband’s favour. The husband also sought an equal division of all assets, presumably including the parties’ superannuation. Neither party is seeking any adjustment on account of contribution factors.
The factors affecting the parties’ future needs are less relevant when discussion superannuation, as the parties will not be able to access their superannuation holdings for some years yet. I am satisfied an equal division of the superannuation interests is appropriate.
Conclusion
Taking into account the findings set out above, the parties’ net asset pool is as follows:
Net Tangible Assets (excluding [1] Property P)
$340,608
[1] Property P
$350,000
Superannuation
$86,404
The wife is to retain 70% of the net tangible asset pool, she should retain assets to the value of $238,426. If the wife is then allocated a further $70,000 representing her 20% interest in [1] Property P, she should retain total tangible assets to the value of $308,426.
The husband would then be entitled to retain 30% of the net tangible assets in the sum of $102,182 together with 80% of the equity in [1] Property P in the sum of $280,000, to a total value of $382,182. Assuming the husband retains [1] Property P, together with his business and his credit card debt, he presently holds assets with a net value of $336,000. Therefore a further adjustment in the husband’s favour in the sum of $46,182 is required.
Turning to the parties’ superannuation interests, I am satisfied that an equal division of the current holdings is appropriate. The husband already holds superannuation to the value of $4,615, therefore a splitting order in the husband’s favour in the sum of $38,587 is required, to equalise the parties’ entitlements.
Is this outcome just and equitable?
On the above calculations the wife will be retaining tangible assets to the value of $308,426 and superannuation entitlements to the value of $43,202. The husband will be retaining tangible assets to the value of $382,182 and equivalent superannuation entitlements.
The wife is understandably anxious to remain living at [2] Property P, particularly as she deals with the physical repercussions arising from her chemotherapy and radiotherapy treatment. Equally the wife is anxious to retain the Property F property as a source of ongoing financial security. This would require the wife to obtain finance in the sum of approximately $46,000 in order to pay out the husband’s settlement, in addition to refinancing the existing mortgages.
Whether she is able to achieve this will depend upon the further financial assistance offered by her father. If she is able to do so, the wife will retain a firm foot in the real estate market and her future financial security will be enhanced. She will retain a heavy debt burden, but is confident of her father’s financial support in that regard.
The husband will retain the property at [1] Property P, free from any mortgage. As the owner of an unencumbered property the husband also retains a sound footing in the real estate market, with his own accommodation assured. Unlike the wife, the husband has a very minimal debt burden beyond the day to day management of his business outgoings.
Taking into account all of my findings, particularly regarding the parties’ interests in [1] Property P, I am satisfied this outcome is just and equitable.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 24 April 2012
Hickey & Hickey (2003) FLC 93-143
AJO v GRO (2005) FLC 93-218
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