Campagna & Aldo
[2008] FamCA 841
•15 September 2008
FAMILY COURT OF AUSTRALIA
| CAMPAGNA & ALDO | [2008] FamCA 841 |
| FAMILY LAW – PROPERTY |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| APPLICANT: | Ms Campagna |
| RESPONDENT: | Mr Aldo |
| FILE NUMBER: | MLF | 606 | of | 2006 |
| DATE DELIVERED: | 15 September 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Watt J |
| HEARING DATE: | 29 February, 3, 4, 5 March 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Kelly & Associates Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Pinner |
| SOLICITOR FOR THE RESPONDENT: | Serafini & Hill |
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF606 of 2006
| MS CAMPAGNA |
Applicant
And
| MR ALDO |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for property settlement between the applicant wife, Ms Campagna, general manager, aged 44 at trial, and the respondent husband, Mr Aldo, unemployed, aged 43 at trial.
The parties were married and commenced cohabitation in February 1994. There are two children of the marriage B born in June 1994 (13 years old at trial) and J born in July 2000 (7 years old at trial). The parties separated under the one roof in June 2005 and finally separated on Christmas Eve 2005 following an assault by the husband on the wife. The wife obtained an intervention order and the husband left the matrimonial home at Y. The husband was subsequently charged with assault, convicted and sentenced to perform community service. The wife and the children have remained living there since and it is part of the relief sought by the wife that she retain the former matrimonial home and make a payment to the husband. The husband seeks that the property be sold, it being his case that the wife lacks the capacity to raise an amount sufficient to acquire his interest.
The parties entered into final consent orders regarding the arrangements for the children on 17 July 2006 before Senior Registrar FitzGibbon. The children live with the wife and although there are orders for the children to spend time with the husband, at the time of trial, he had not spend time with them since November 2007.
Background
Both parties agree that they had an ‘on and off’ relationship for a number of years prior to their marriage in February 1994. At the time of marriage the wife owned an apartment in S and the husband moved into that apartment on marriage. Other aspects of the parties’ financial position at the time of the marriage are dealt with later in this judgment.
In about June 1994 the husband found a five acre property at Y that the parties purchased for $190,000. The husband’s case is that he spent a lot of his weekends renovating the home on the property and clearing and cleaning up the land. The wife’s S property was sold in late 1994.
In or about November 1997 the parties registered a subdivision of the Y property which created two properties - one in Y Road and the other in N Road. In mid-1998 the parties sold the Y Road property for $185,000 and used the proceeds of sale to discharge the outstanding mortgage and put the rest towards the construction of the matrimonial home on the N Road property. A builder was engaged to build the home and the husband assisted. The parties lived in rental accommodation until about December 1999 when they moved into their home at N Road in Y.
Following the parties’ separation in December 2005 the husband has lived in various places. The wife and children have remained in the former matrimonial home.
The wife had been employed until she was retrenched from her position at G Business at Christmas 1993 and that soon after, although she was pregnant with their first child, she developed an accessory business. To conduct this business, C Pty Ltd was registered in October 1994 with the husband and wife as the directors and shareholders. The wife’s case is that her work background in accessories enabled her to develop products. The business traded under the name “C Business”.
At first the business operated from the parties’ home and from an area at the back of the husband’s parents’ factory. In or about 1997 the parties moved the business to a factory in K in the northern suburbs. C Pty Ltd purchased a factory located at T sometime in late 2002 or early 2003 for $210,000.
The wife has worked as the chief executive officer of C Pty Ltd since it started. The husband was also involved in C Pty Ltd to various degrees at different times. In July 2007 the wife incorporated another operating company, X Pty Ltd. She is the general manager and director of this company. The wife gave evidence that she was obliged to set up another operating company following certain actions of the husband. The wife wishes to continue to conduct the business.
At the time of marriage the husband was employed in his father’s factory. He continued this employment until 1997. In the early 2000’s the husband started a construction industry business called AM Business with his brother D Aldo. He continued in this business until certain equipment of the business was sold in July 2006. The husband also assisted in the operation of the business C Business from its early days until late December 2005. The parties differ about the extent of the contribution the husband made to the C business, and whether the wife’s running of the business was commercially sound. There is no doubt that although the wife was the prime mover in establishing and running the business, it was a joint venture of both husband and wife.
In March 2000 the wife became the sole beneficiary of the estate of her late brother. She inherited an unencumbered house in the peninsula area, a bank account with a balance of $67,924.87, a motor vehicle which was sold for $20,000 and a Harley Davidson motorbike which was also sold by the wife and used to pay the funeral expenses. The wife has received the rent from the peninsula property and has also used the property as security to raise funds that have been used in the business. She intends to transfer the peninsula property to the four daughters of her late brother at some later time.
In July 2001 the husband and his two brothers became the registered owners as tenants in common in equal shares of a property at R purchased by the husband’s father. The husband’s case is that he holds his one third interest in the property on trust for his parents.
The proceedings
The proceedings were initiated by the wife filing an application for final orders on 3 February 2006 seeking orders concerning the children and property settlement orders. The husband filed his response on 21 March 2006. The wife filed an amended application for final orders on 3 October 2007 and the husband filed an amended response on 16 November 2007. There have been a number of interim proceedings in the Family Court of Australia as well as ongoing intervention proceedings in the Magistrates’ Court. As stated above final children’s orders were made on 17 July 2006. The trial commenced before me on 29 February 2008 and concluded on 5 March 2008, a total of 4 hearing days.
Documents relied on at trial
The wife relied upon the following documents:
·Amended Application for Final Orders sworn 2 October 2007
·Wife’s trial affidavit sworn 19 December 2007;
·Affidavit of R Campagna sworn 19 December 2007 (the wife’s niece);
·Wife’s Financial Statement sworn or affirmed 28 November 2007.
The husband relied upon the following documents:
·Amended Response to an Application for Final Orders sworn or affirmed 15 November 2007
·Husband’s trial affidavit sworn 29 November 2007; and
·Husband’s Financial Statement sworn 29 November 2007.
The following affidavits of single expert witnesses were received into evidence:
·Affidavit of Mr BK sworn 17 December 2007, single expert witness as to the value of the property at T;
·Affidavit of Mr W sworn 13 December 2007, single expert witness as to the value of N Road and R property;
·Affidavit of Mr KC sworn 13 December 2007, single expert witness as to the value of the peninsula property;
·Affidavit of Mr F sworn or affirmed on 25 January 2008, single expert witness as to the value of the business conducted by C Pty Ltd trading as “C Business”.
The parties filed a joint case summary on 25 February 2008.
The law to be applied – property orders
Section 79 of the Family Law Act 1975 (“the Act”) provides:
79(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account-
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in sub-section 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account in accordance with s 79(4)(e) are:
75(2)
The matters to be so taken into account are:
(a) the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
As to superannuation, s 90MC of the Act is in the following terms:
A superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4.
For many years, the Full Court of this Court prescribed a three‑step process to be undertaken in all but exceptional cases when exercising the discretion conferred by section 79. See, for example, Ferraro v Ferraro (1993) FLC 92‑335. In that case the Full Court held:
A now well‑established line of authority in this court indicates the approach normally to be taken to the exercise of the discretion in section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider the contributions of the parties within paragraphs (a) to (c) of section 79(4), and then to consider the matters in paragraphs (d) to (g), more especially paragraph (e), which takes up by reference the provisions of section 75(2) and which are generally referred to as the section 75(2) factors.
The Full Court has also recognised that there is a further step that should be undertaken in property proceedings. I will refer to it as the overview step. This takes place once the court has ascertained the property of the parties, conducted its assessment of the parties' contributions and made adjustments to take into account all relevant factors under section 75(2). At that stage the court should stand back from the outcome thus far reached, look carefully on the effect on the parties of the orders envisaged, and consider whether the outcome produced is just and equitable within the meaning of subsection 79(2). This approach may be seen in operation in the case of Aleksovski and Aleksovski (1996) FLC 92‑705. It has been stated more recently by the Full Court in Hickey and Hickey and Attorney-General for the Commonwealth Of Australia (Intervener) (2003) FLC 93-143 in paragraph 39:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), (``the other factors'') including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
I also make reference to Coghlan’s case, (2005) FLC 93-220 a decision of the Full Court in relation to the treatment of superannuation. As will be seen, I have not treated superannuation as a separate pool as no splitting orders were sought and the parties jointly approached superannuation by adding the agreed valued of their superannuation interests to the table of assets.
Assets, liabilities, add backs, superannuation and disputed items
Assets
Former matrimonial home
The parties agreed on the valuation of the former matrimonial home at N Rd in Y at $1,000,000. This valuation by Mr W, was in a report dated 9 November 2007 annexed to his affidavit sworn 13 December 2007. The mortgage owing on the property at trial was agreed at $80,630.
Peninsula property
Mr KC valued the Peninsula property at $240,000; see his report annexed to his affidavit sworn 13 December 2007. The property is in the name of the wife. The wife has a business loan against this property in the sum of $150,000, discussed later in this judgment.
R Property
Mr W, in the same affidavit annexed a report valuing the property at R at $380,000. The husband concedes that according to the title of the property he owns a one third interest in the property. There is a mortgage of $115,000 secured on this property. The agreed net value of husband’s one third share of the property was $88,333. The husband’s case is that he holds his interest in this property on trust for his parents. The wife was unaware that there was a mortgage over this property until just before or at the trial. Neither the husband’s parents, nor the co-owners, his brothers, gave evidence as to the existence of the alleged trust.
Factory in T
Mr BK from was appointed as the single joint property expert in relation to the property at T. In his report dated 13 November 2007 and annexed to his affidavit sworn 17 December 2007 he values the premises at $220,000. C Pty Ltd is the registered proprietor of the property. Both parties accepted this valuation.
Company valuation
Mr F, chartered accountant, was appointed the single expert witness to value the business C Pty Ltd trading as “C Business”. He concluded that the interests held by the husband and wife in C Pty Ltd as at 30 June 2007 were in deficit to the extent of $187,335 .
The land and buildings owned by the company at the Factory in T, are included as an asset of C Pty Ltd in the company’s balance sheet at $220,000 in accordance with the valuation of the single expert valuer, Mr BK, referred to in paragraph 28.
Mercedes motor vehicle
The value of the Mercedes motor vehicle is included in the valuation of C Pty Ltd.
Truck and equipment
Formerly used in the business AM Business: see paragraphs 118 and 121 below.
Other Motor vehicles
The husband said he purchased a 1994 Ford Capri on 15 December 2007 for $3,000 from the proceeds of sale of his Holden utility motor vehicle sold for $4,000: exhibit H10
The husband owns a motor bike, 2000 KTM 520 Exc, which was purchased in January 2001. The husband values it at $2,000: Exhibit H10. The wife disagreed with this figure but had no other evidence of valuation: see paragraphs 171-173 below.
The Vespa motor scooter was valued at by agreement at $7,500. see paragraphs 174-176 below concerning the husband’s outstanding Visa account, and recent events affecting this vehicle.
Chattels
Some chattel issues between the parties remained unresolved by the end of the trial. In terms of value, there was little evidence in relation to the contentious chattels. The husband placed a value of $4,000 on certain tools and equipment.
Exhibit H12 comprised a list of personal and household items that the husband sought to retain. Exhibit H14 is a list of items prepared by the husband of the items he states that he has already taken from the former matrimonial home. Exhibit H13 is a copy of Exhibit H12 which the wife has marked to indicate items that the husband may have. This is better set out in AMW5 where the wife lists in her handwriting the items that the husband may have.
The chattels in dispute appear to be the ride on mower, garden seats, wife’s rings that were gifts to her by the husband, pavers and roof tiles. I deal with the chattels issues later in the judgment.
Superannuation
The wife has a superannuation fund valued by agreement at $27,000. The husband’s superannuation fund is valued by agreement at $3,000. The funds were mainly acquired during the marriage although the wife continued to make contributions after separation. The husband did not seek a splitting order. The wife did not attribute any particular portion of the $27,000 to post-separation contributions made by her.
Liabilities
Debt to Y Council
At paragraph 41(k) of her affidavit sworn 19 December 2007 the wife deposes that at separation there was a “liability to the [Y] Council in the sum of $9,000.” The wife produced in evidence a letter from the Council dated 4 January 2008 relating to road making charges in the sum of $9,120.60. The wife said the charge related to arrears owing (and interest) relating to the dirt road outside the property at Y being made into bitumen.
In evidence the wife produced a further letter from the Council dated 16 October 2007 relating to a special charge sum and stating that the amount of $2252.62 is outstanding including arrears. The wife gave evidence that this related to the driveway and the pipes that had to be put under the driveway. The wife gave evidence that all driveways had to be ‘made’ – bitumened and drained – and that this work happened around the time of separation and remained unpaid. There was no dispute that the account related to the Y property.
The wife submitted that these two liabilities were jointly owed by the parties. The husband admitted the debt of $9,000 but did not admit the additional $2252.62. He did not assert, however, that the amount was not payable to the council in accordance with the notice. The total of these amounts is $11,373.22 and I am satisfied that both should be treated as joint debts referable to the Y property.
Mr F Report Cost
The husband agreed in cross-examination that there was a court order that each party meet half of the costs of the sworn valuations for the real estate and of the business. He agreed that the wife had paid the full cost of the report prepared by Mr F – in the sum of $2750 - and that his share ($1375) was still outstanding. This sum was not taken into account in the wife’s final calculations of how much she should pay the husband but it clearly should be, and I will do so at an appropriate time.
Visa debt and motor scooter in husband’ possession
The husband’s evidence was that he purchased a motor scooter (Vespa 200) for $7,500 soon after commencing full time work in deliveries in about November 2007. He paid a deposit of $1,000 using his Visa credit card on 27 October 2007, paid $3,500 in cash on 27 October 2007 and the remainder of $3,000 was debited to his Visa credit card on 10 November 2007: see Exhibit H10. The husband owed $6,661.32 on his Visa credit card as at 25 February 2008 (Exhibit H8) of which he claims $4,000 is referable to the motor scooter. The motor scooter remains in the husband’s possession.
The parties agreed to value the Vespa at its purchase price of $7,500.
Outstanding school fees
The wife’s evidence was that the 2008 school expenses for the two children total $9,000.
The wife gave evidence of outstanding school fees for 2008 and tendered accounts from the children’s two schools which became Exhibits W9 and W10.
In final addresses both parties agreed that the $9,000 for 2008 should be treated as a joint liability.
Add-Backs
Volvo station wagon
A Volvo station wagon was sold by the husband for $8,000. The proceeds of sale were retained by the husband and he agreed that this sum should be added back to the asset pool.
Refund from Metricon Homes
The wife sought that the funds received from Metricon Homes in the sum of $7221.96 be added back to the asset pool. This sum was received in the first half of 2006 (therefore post-separation) by way of a cheque from Metricon Homes to compensate the parties for defects in the construction of the former matrimonial home. The sum had been retained by the husband and used for his personal benefit.
There was a dispute about whether the whole of this sum should be added back because the husband claimed to have paid expenses incurred to recover this amount after he received the cheque.
The wife’s evidence was that the relevant invoices predated the separation of the parties under the one roof and the final separation on 24 December 2005 and that they were paid for by the parties while they were together. Exhibit H4 shows an invoice dated 5 May 2005 addressed to the husband and wife for their half share of the report prepared by order of VCAT in the sum of $3,564. This report was needed, as I understand the evidence, to satisfy VCAT that Metricon had been at fault in their construction of the home. The payment terms are said to be “7 days and prior to despatch of report”. Exhibit H4 also includes a letter from Metricon dated 12 January 2006 addressed to both parties and refers to a cheque for $7221.96 being drawn and sent to them once copies of a Deed of Settlement have been returned. The husband’s evidence was that he received the cheque in his name alone and that he paid for the report once he had received the cheque. He offered no documentary evidence to support his claim. He submitted that the sum of $7221.96 should not be added back into the table of assets and maintained this position in final addresses.
I consider that the documentary evidence supports the wife’s version of events, namely, that the bill for the report ($3,564) was received and paid pre-separation, and the full amount of $7221.96 should therefore be added back to the asset pool.
Money removed from Company account by husband
The husband conceded that $5,000 should be added back to the asset pool being moneys he used in March and April 2006 from the company account to pay for some of his legal fees and travel expenses.
This concludes my initial identification of the assets, liabilities, superannuation and add-backs. I will return to these in due course.
Orders sought in application/response
In her amended application the wife sought that the husband transfer his interest in the former matrimonial home to her and she refinance the mortgage to discharge any liability the husband may have in relation to that debt; the husband transfer his interest in the business C Pty Ltd to her and resign any offices he may hold in that business; the wife transfer to the husband any interest she has in the Volvo motor vehicle used by the husband and the business trading as “AM Business”. The wife also sought that each retain their superannuation entitlements and that unless specified each party be solely entitled to the property in their possession and be solely liable for and indemnify the other against any liability encumbering any property to which that party is entitled.
In his amended response the husband sought that the former matrimonial home and the real property in the peninsula (a property inherited by the wife) be sold forthwith and the net proceeds be disbursed 60% to the wife and 40% to the husband; that contemporaneously with the above disbursement the husband resign any office holding and transfer any shareholding to the wife in C Pty Ltd and the wife be responsible for and indemnify the husband for all debts and liabilities of the company including all taxation liabilities and for any amounts owed by the husband to the company and release him from any personal guarantees given by him for on or behalf of the company ; the property at T Factory be sold forthwith and the net proceeds be disbursed 50% to each of them; that, similarly to the wife, that unless specified each party be solely entitled to the property in their possession and be solely liable for and indemnify the other against any liability encumbering any property to which that party is entitled.
Orders sought at trial
At the beginning of the trial counsel for the wife submitted that the orders sought by the wife were as set out in her affidavit sworn 19 December 2007 at paragraphs 73 [orders sought in her amended application filed 3 October 2007] and 74 [sets out what the husband will retain] but that in addition the wife would pay the husband the sum of $190,000.
Mr Pinner, counsel for the husband, submitted that the husband sought the orders set out in the Joint Case Summary which are the same as he sought in his amended response. On the husband’s case, the husband sought that the wife pay him $400,000 [as opposed to $190,000]
In closing address counsel for the wife handed up a “Minute of Orders Sought by the Wife”. It became Aide Memoire W4 “AMW4”. It provides that within 60 days the wife pay to the husband the sum of $189,079 and contemporaneously the husband transfer his interest in the Y property to her, the wife refinance the mortgage secured on the home and any other encumbrance into her sole name and release the husband from such liabilities, the husband to withdraw the caveat lodged against the Y property at his expense, the husband to resign from any office he holds in C Pty Ltd, transfer any loan account and any shares he may have in the company to the wife or her nominee and the wife to indemnify the husband as to all debts and liabilities of the company, and in the event that the wife defaults in making the payment then the Y property be sold and the proceeds of sale be disbursed in payment of the costs and expenses of the sale, payment of encumbrances, payment of 32% of the balance remaining to the husband; less the sum of $135,253 and the payment of the balance remaining to the wife. In closing address the wife sought that the husband pay $6,120 being 68% of the 2008 school fees and this would be achieved by the wife paying to the husband $182,959 ($189,079 minus $6,120).
Mr Pinner for the husband also handed up a minute of the orders sought by the husband – Aide Memoire H5 ‘AMH5’ and a document headed “Effect of Orders Sought” which became ‘AMH4’. I will refer to these documents at a later stage.
Commencement of cohabitation
The parties commenced cohabitation when they married in February 1994. At the commencement of cohabitation the wife owned an apartment in S which she purchased in 1992 for $76,000 with a mortgage of $60,000. The property was sold in 1995 for $95,000 and the mortgage (then about $56,500) was discharged. The wife owned the furniture in the apartment at the date of marriage. The proceeds of sale of the unit were used to fund the purchase of the Y property and repay a loan of a few thousand dollars from the wife’s father.
The husband states in paragraph 10 of his trial affidavit that at the date of marriage the wife’s apartment was valued at $71,000 but gives no basis for this belief. He agrees that the mortgage owing at the date of marriage was approximately $60,000. The husband states the wife owed her father $6,500 which had been lent to her to purchase the unit and that he repaid this sum to the wife’s father in 1994 when the parties married. The wife disagreed with this and said that she gave her father back about $2,000 out of the proceeds of sale of the apartment and there was no amount that the husband gave to her father to repay any debt she had.
The husband also states that he repaid the wife’s Myer card debt of $2,100 after marriage. The husband also states at paragraph 11 that shortly prior to the marriage, when the wife was retrenched from her employment he took on the responsibility for paying her home loan repayments on the S apartment until the sale of the property in about December 2004 (a period of about a year). The wife conceded that the husband made one mortgage payment on the apartment prior to their marriage and that he may have made 10 payments of $300 after they were married. The wife’s evidence is that she received a retrenchment package of between $6,000 - $7,000 some time after her retrenchment. She started the business as soon as she was retrenched and before the company was incorporated in October 1994. It is her case that although she was pregnant she was working from home, there were “some very sizeable orders in the first year, 1994” and the business was generating an income.
The husband asserted that he carried out substantial renovations to the wife’s apartment prior to its sale and that the “increase in value over the 18 month period of [the wife’s] ownership was largely as a consequence of the improvements I effected to the property”: see paragraphs 12 and 13 of the husband’s affidavit sworn 29 November 2007. The wife strongly disputes the work the husband alleges he did to renovate the apartment. She states that he ripped up carpet she did not want removed, leaving the concrete floor exposed during winter and otherwise she “paid various contractors including labourer ‘friends’ to carry out painting, carpeting and renovating the apartment. The wife stated that she also “painted and made curtains for all windows.”: see paragraph 38 of the wife’s affidavit sworn 19 December 2007. In cross-examination the wife said that she did not dispute that the husband contributed some labour to the apartment, bought some taps and paid for part of the kitchen.
At paragraph 9 of his trial affidavit the husband asserts that at the date of marriage he owned a Mercedes motor vehicle which was sold in about June 1994 for $43,000 and bank savings of $4,000. He states that prior to the marriage he used the proceeds of sale of his motor bike to purchase an engagement ring for the wife for $5,000. He states he had no liabilities. The wife disputed that the husband sold the Mercedes motor vehicle for $43,000. Relevant ANZ Bank statements for the period April 1994 to November 2004 (Exhibit W15) show a deposit of $38,000 into the bank account on 11 May 1994. The wife accepts that this is the payment for the motor vehicle. In cross-examination the husband maintained that he received $43,000 by a cheque for $38,000 and $5,000 in cash – that was his recollection of the price he received for the car. He gave no evidence of what he did with the $5,000 cash.
At the time of marriage the husband was working for a business owned and run by his father. He worked for his father until about 1997: par 29 of the husband’s trial affidavit. He does not state what he was earning during this period, but the wife did not dispute that he was receiving a wage.
In summary at about the time of marriage, both parties had assets and resources which were either in cash (the wife’s retrenchment payment), the husband’s savings, or were converted into cash soon after – the husband’s car, the wife’s apartment.
Contribution during marriage
The wife’s position at the opening of her case was that the contribution each party made during the marriage was “roughly equal”. The wife’s summary of argument describes their respective contributions as follows:
Wife
(i)driving force in developing and growing the business [C] P/L. researching, formulating and developing product range for the business, dealing with customers and creditors and general business interstate and some overseas promotion;
(ii)significant home maker and parenting role, including caring for children when young for extended periods at the factory premises.
Husband
(i)initially employed as manager at his parent’s […] factory; from early 2000 self-employed in [building] business [AM Business]; from early 2003 to December 2005 as well as continuing employment in his [building] business was employed between 3-5 days per week in the factory at [C Pty Ltd]; attending to some landscaping and other labouring type work at the parties’ property at [Y] during and after its construction;
(ii)assisted the wife with domestic duties from time to time and parenting of the children including occasional sole parenting when the wife was interstate promoting the business of the parties.
In her final address the wife urged me to find that the wife had contributed between 53-55% in terms of pre-separation contributions, the extra 3-5% due to the wife’s inheritance of some $88,000 most of which was used to benefit the family.
The husband urged me to find that his pre-separation contribution was 52.5%. In his summary of argument he put these under three headings. Under the heading ‘financial contributions’ the husband listed his Mercedes and savings a the date of marriage which were used for the benefit of the family, his earnings from his employment in his father’s factory, in the C business and the AM Business. He also lists the financial contributions he states were made by his parents:
·$8,000.00 towards the cost of the wedding
·Gifts of white goods and furniture
·Wedding gift of $3,000.00 cash
·Cost of honeymoon to Thailand
·A Holden Camira motor vehicle, which was subsequently sold for $1850.00. the proceeds of which were used towards purchasing of a BMW motor vehicle.
·$4,500.00 for the cost of the clean up at the Y property
·$10,000 cash towards improvements to the Y property
Under the heading “Non financial contributions” he lists his repair and renovations to the S apartment, the repairs and improvements to the original Y property and his family’s assistance, his work on the construction of the former matrimonial home, his assistance with C business while he was still employed at his father’s business and the rent free accommodation provided by his parents for the business. The third heading covers his contributions as a homemaker and parent, his role increasing as the wife travelled more with the business. He asserts that he made a “significant positive contribution above that of the wife to the acquisition, conservation and improvement of the assets of the family” up to the date of separation.
The husband is critical of the wife and asserts that she made a negative contribution in her running of C business evidenced by increase in the levels of indebtedness of the business to the date of separation.
Contribution post separation
It was the wife’s case, that the husband made a negative post-separation contribution by his undermining of the financial backing and stability of C Business, as set out in paragraphs 52 and 53 of her affidavit. The wife also argues that a negative contribution by the husband post-separation has been the emotional effect on her and the ongoing counselling she has undertaken as a result of the assault on her by the husband and his entering the house and removing items without her permission. She states that this has affected her ability to work at the business as she would have liked. This is discussed elsewhere in this judgment.
The wife argues that she has had the far greater physical and emotional care of the children since separation and the financial support of the children due to both the husband’s absence from Melbourne and Australia and his periods of unemployment. The wife submits that even when the husband was employed it is difficult to know for what periods he was employed and how much he was earning. The wife claims that any periods of employment have not been reflected in the amount of child support she has received. The husband’s position is that he pays the amount of child support required by him by the Child Support Agency. He did not seem aware that it was $6 per week, he said “whatever it might be” when this figure was put to him. His attitude was that “my business is currently taking care of my contributions towards the children” – alluding to his view that the wife had excluded him from the business which was the primary source of income for the family.
He also put to the wife that she had wasted money on travel and entertaining. She did not dispute the expenditure, but stated that it was a normal part of business activity which had been occurring throughout the marriage. He also submitted that he had to have the periods of time overseas and outside Melbourne to recuperate from his injuries and that the wife has prevented him having time with the children. The husband agreed in cross-examination, however, that there had been an agreement reached (between the solicitors for the parties) that the children would require some family therapy, especially with their father, in preparation for the children commencing spending with the husband. This family therapy had not taken place at the time of trial.
Contributions by husband’s parents
In his trial affidavit the husband asserts that his parents assisted the parties throughout the marriage. He states that his parents contributed $8,000 towards the cost of their wedding reception and gave them white goods and furniture including a washing machine, dryer, microwave, heater, dining table, coffee tables, bed, chest, entertainment units and cash of $3,000. In addition they paid for the honeymoon to Thailand: see paragraph 8 of his trial affidavit. The wife denied that the husband’s parents paid for their honeymoon trip.
In paragraph 10 of his affidavit the husband states that his father purchased a Holden Camira for them but that it was for the wife’s use. The wife disputes that this car was purchased for them. She acknowledged that she did drive this vehicle for several months but denied that she drove it for the year or two that the husband alleged, and denied that the car was ever registered in the names of the parties or either of them. No proof was provided on this point by the husband.
In paragraph 14 of his trial affidavit the husband states that the Y property was purchased in June 1994 for $190,000. He states that he paid the $19,000 deposit from his personal bank account. In cross-examination, counsel for the wife showed Exhibit W15 to the husband being the husband’s ANZ bank statements for the relevant period which show that when the $19,000 deposit was paid for the Y property, the bank account was overdrawn by $7,117. The husband was also shown an entry for the next day which showed a deposit of $8,500 into the account. The husband said that this must have come from his parents although he agreed that he had not included this in his affidavit. It was put to the husband that the money came from C Pty Ltd and that once C Pty Ltd was established, moneys moved between the accounts. He husband disputed this and reiterated that his parents had given them large amounts of money throughout the marriage and he had overlooked this $8,500.
In paragraph 14 the husband states that the proceeds of sale of his Mercedes car - $43,000 – were put towards the purchase of the property and a Nissan Patrol motor vehicle, a loan of $147,000 obtained from the ANZ Bank by the husband and the wife “and the balance of funds required were given to us by my father”. It is impossible to know what funds (if any) were provided by the husband’s father as the husband does not say what part of the $43,000 (a figure challenged by the wife in any event) went towards the purchase of the property and what went to the purchase of the Nissan Patrol. In cross-examination the husband said that where in exhibit W15 [the ANZ Bank statements] he had marked $10,000 as being withdrawn on 28 July 1994 as “payment for flat [S]” that this was wrong and it was actually payment for the Nissan Patrol car. He went on to say that the motor vehicle actually cost $17,000, $10,000 came from the bank withdrawal and the balance came from his parents in cash. “They gave us cash and I gave cash to the people when I picked up the car.”
In paragraph 15 of his trial affidavit the husband states that his father paid $4,500 for the cost of cleaning up the Y property and on 30 May 1995 his father gave him $10,000 towards the cost of improvements to the Y property. The wife did not admit these amounts and the husband provided no evidence from his parents.
In paragraph 20 of his trial affidavit the husband states that for the first two years after the company C Pty Ltd commenced operation in October 1994, trading under the business names “C Business” and “C Australia”, the business operated rent free from the rear of his parent’s factory in K. The company did not have to pay for the use of utilities. The wife agreed she had the advantage of being able to store and pack items in an unused garage at the back of the husband’s parents’ business but did not agree there was any equipment there. She said she mostly worked from home and had a fax machine and her other equipment set up at home. The husband states that his parents also gave them financial assistance from time to time“ eg, payment of cost of shelving and pallet making.”
The wife acknowledges that the husband’s parents provided for the husband on a regular basis and describes their assistance in a different way although she does acknowledge that his mother assisted with the care of the children from time to time. In her trial affidavit she states at paragraphs 37, 39 and 40:
37. …At the time we were married, approximately aged 30, the husband had never secured a bank loan and still asked his parents to pay for bills such as dentist. His parents even provided the money for his car and motorbike. …
39.The husband had a Mercedes motor vehicle worth about $35,000. I understand he paid for some modifications but aside from this, his parents had actually paid for the car.
40 … he seemed happy to rely on his parents paying for him as long as he could …
Given the significant disputes surrounding the extent of the husband’s parents’ contributions, it was surprising indeed that the husband’s parents did not swear an affidavit in these proceedings. This was a matter addressed in closing submissions by counsel for the wife.
Wife’s inheritance
It was common ground that the wife received a property in the peninsula area as an unencumbered property on 14 March 2000 being part of the estate of her late brother who died in April 1999. The brother’s last Will and Testament (annexure ‘CC5’ to the wife’s trial affidavit) appointed the wife as his executor and she is his sole beneficiary. The wife’s evidence was that prior to his death, her brother had spoken to the wife about his desire to protect his property for his four daughters. As he was separated from his wife, and the daughters were all under 18 years of age, he wanted to prevent his wife from making any claim to this property and so he made his sister (the wife) the sole beneficiary of his estate, but he wanted his children to benefit from the house when they turned 18. The wife’s position is that she “always regarded the [house] property as belonging to my brother’s children” and she intends to comply with her brother’s wishes: see paragraphs 54-56, 61 of the wife’s trial affidavit.
The parties agreed that the real property located on the Peninsula is valued at $240,000. In his valuation, Mr KC confirms that the wife is the sole registered proprietor. Mr KC verified that the property was currently leased on a monthly basis for $737 per month. Counsel for the wife submitted that the receipt of rental is a benefit that flowed from the inheritance to the parties during the marriage. Paragraph 60 of the wife’s affidavit sworn 19 December 2007 states:
Neither the husband nor I made any contribution to this property during the marriage. Since it was inherited by me under the terms of the Will I have had the benefit of receiving all rental income which, until 2004, which [sic] not only paid all expense relating to the property including rates and maintenance but also contributed to our family income. Since 2004 the rental income has largely covered the borrowings.
The wife’s nieces are currently aged 26, 22, 19 and 14. A letter signed by the wife and her niece R Campagna, on behalf of herself and her three sisters, dated 6 February 2006 (annexure ‘CC6’ to the wife’s trial affidavit) reads as follows:
This letter is to confirm the following arrangement.
That I, [the wife], am the legal owner of [the Peninsula property], according to the last Will and Testament of my late brother […].
That the [Peninsula] property is held on Trust, for my nieces, [my brother’s] four daughters being [R Campagna], […], […] and […] all of whom are under the age of 18 at the time of my brother’s passing.
That I may use the property as security for borrowings to support my business.
That any rental income generated from this property be used to repay the loan taken out and secure by the [Peninsula] property.
That the property will be transferred to [the four nieces] as soon as practicable following the release of the property from borrowing for which it is security, or the finalisation of property settlement matter involving [the husband].
That in lieu of rental received prior to the property being used as security for further borrowings, I will pay any capital gains tax and stamp duty that may be payable on transfer of this property to my nieces.
At paragraph 6 of her affidavit sworn 19 December 2007, R Campagna confirms that she signed this letter as asserted by the wife. R Campagna was not required for cross-examination.
The wife’s evidence was that she also inherited her brother’s savings of $67,924.87 held in his NAB savings account, a Commodore motor vehicle which was sold by the wife for $20,000 and a Harley Davidson motorbike sold by the wife for $11,000. The savings and the money from the sale of the motor vehicle were used by the wife for the benefit of herself and the family and the money from the sale of the motor bike was used by the wife to pay for expenses of her late brother’s funeral. Exhibit W7 is a (Supreme Court of Victoria in its Probate Jurisdiction) document setting out the Inventory of Assets and Liabilities of the wife’s brother’s estate. The figures asserted by the wife accord with this document. In evidence in chief the wife said that the rental she received on the Peninsula property was used to “bolster up our everyday living, …groceries, that kind of thing. Then every now and then when it built up I would take out lump sums and they would go off the mortgage or into the company. That happened quite a number of times”. The wife tendered an ANZ access account bank statement for the period 1 March 2004 to 1 June 2004 which show rental from the Peninsula home deposited into an account in the name of the wife: Exhibit W6. The wife also gave evidence that with her husband’s knowledge she used the accumulated rental income to purchase a car for each of her nieces as they turned 18 – approximately $3,000 plus insurance for the first two girls, $3,500 plus insurance for the third girl plus she had given them about $2,000 when they had some financial issues.
In 2004 the wife wanted to borrow funds against the security of the former matrimonial home to enable C Pty Ltd to further its projects. The wife said that she discussed this with the husband and, when he refused to allow the home to be used as security, she obtained a loan of $150,000 against the Peninsula property to be drawn down as she required. Initially the wife drew down $90,000 and in September 2007 she drew down a further amount. The liability at trial was $150,000. In Mr F’s valuation of the business, he refers to this liability as being included in the directors loans as the loan is in the name of the wife Equity Manager Account with the ANZ Banking Group. The balance of the bank loan liability with the ANZ Banking Group Ltd was $88,953.73 as at 30 June 2007 (the date at which Mr F valued the business), and this was the agreed figure to be used in the assets and liabilities table. Mr F’s report states that the increase to $150,000 subsequent to that date should not cause the accounts to 30 June 2007 to be adjusted, rather the increased borrowings should be reflected in a corresponding decrease in funds owing to trade and other creditors.
The husband agreed the wife did discuss borrowing money against the former matrimonial home and that he refused to give his permission. He asserted that the wife did not discuss borrowing against the Peninsula home with him. The wife’s evidence was that she had.
The husband’s argument was that because (on his version of the facts) the wife unilaterally went ahead and borrowed against the Peninsula property she should be entirely responsible for that loan. The difficulty with attributing all of that loan to the wife is that the money was put into the company which has been the principal source of income and therefore support for the family up to separation and the sole source of income for the wife and children since separation. On any view, the wife’s inheritance of her brother’s estate represented a significant contribution by the wife for the benefit of the family both in terms of capital and income.
Husband’s interest In R property
This property is located at R. This property was purchased by the husband’s father, on 25 July 2001 for $160,000 but the title is held by the husband and his two brothers registered as tenants in common in three equal undivided shares. At paragraph 28 of the husband’s trial affidavit he offers this explanation as to how he holds a one third share in the property:
..on 25th July 2001, my father […] purchased at auction a property at [R]. The purchase price was $160,000. Because my father had difficulty in obtaining approval for funding of the purchase, he nominated myself and my brothers [D Aldo] and [M Aldo] as purchasers of the property. This was done on the understanding that my brothers and I hold the property on trust for our parents. To assist with the funds required to purchase, my parents arranged a loan of $130,000 which loan is secured on their home at […]. The balance of the moneys to settle and all stamp duty and registration costs were paid by my parents. I have had no involvement in the property other than to sign the documents to purchase and to obtain funding. The property has been rented. My father has received the rental income and has made all repayments, such repayments being in excess of that required. As at the date of separation, the loan outstanding stood at $121,600 approximately. It now stands at $114,504.
The husband’s case is that his name was only put on the title to enable his parents to obtain a loan. His parents were able to obtain a loan secured over their home according to the husband and otherwise had sufficient funds to purchase the property.
The husband submits that the equity in the R property is $265,496: see his outline of case filed 25 February 2008 that the value of the property is $380,000 with a sum of $114,504 currently owing to the ANZ Bank. The wife’s case was that until close to the trial date she was unaware that there was a liability secured on the property.
The husband asserts that he holds his one third interest in the property valued at $88,333 on trust for his parents. Accordingly, he initially asserted that it should not be included in the pool of assets available for distribution. The wife contested this, claiming that the husband’s interest should be included in the asset pool. Counsel for the wife conceded that the property was purchased by the husband’s parents, however she submitted that in the absence of evidence to the contrary, it could be inferred that their intention was that their sons, including the husband, would have legal and equitable interests in the property. I accept this submission.
Mr W valued this property at a market value of $380,000. He confirmed the existence of a lease on the property between the husband, D Aldo and M Aldo as landlords and …as lessee for a period of 4 years effective from September 2006, for a fixed sum of $15,288 per annum.
Counsel for the wife submitted that the husband received the benefit of rental from the R property as well as a tax deduction for negative gearing for the tax return years 2002, 2003 and 2004. In cross-examination the husband agreed that the income and liabilities of the property may have been included in those years but he did not believe they had been shown in recent tax returns. Counsel for the husband asserted that the rental is now credited towards the mortgage on the husband’s parents’ home.
It is not clear to me how the sons being on the title assisted the parents to obtain the loan and why the parents were not also on the title. The parent’s home provided the necessary security. As mentioned earlier, the husband’s parents were not called to throw further light on this transaction. The husband’s one third interest in the property was included in the assets to be divided in the “Effect of orders sought” document that the husband’s counsel handed to me on 5 March 2008 (AMH4).
The husband is the legal owner of a one-third share and he admitted in evidence that it` was the intention of his parents when they die that each of the sons retains his one third interest and he does not intend to attempt to realise or deal with his interests in the property during his parents’ lifetime.
The C business during marriage
The wife’s case is that she was and is, in effect, ‘the brains’ and creative force behind the company. In paragraph 44 of her trial affidavit the wife sets out her prior work history, her studies, research, and design skills that enabled her to develop products and accessories for the company. Her first brand was called ‘C Brand’. The husband did not challenge this paragraph.
In evidence the wife refuted the husband’s inferred assertion that during 1994 she did not contribute very much to the family’s finances and said that she started the business soon after she was retrenched and before the company was incorporated, working from home, and it generated an income. The wife had some sizeable orders for accessories she had developed and in support of this proposition she tendered an ANZ Bank statement for the company which showed a deposit entry of $143,678 from the store …, and a deposit of $26,313 from the store …, both in December 1994.
In paragraph 45 of her trial affidavit the wife asserts that the husband’s contribution to the company was minimal. She states that he worked as a part time storeman/warehouse employee for about three years in the company (from early 2003 until late December 2005) but that he did the minimum about of work and that he preferred to engage in his construction industry business, and doing work at the Y property.
I find that the wife’s contributions to the care and support of the children since separation in the circumstances I have described warrant the further adjustment sought by her of 5%, leading to an overall contribution-based assessment of Wife 60% and husband 40%.
Section 75(2) factors and overview
The wife sought an adjustment in her favour of 10% principally on account of her ongoing care of the children, possibly without any sharing of that care by the husband, and also on the basis that he was unlikely to contribute to their support in any meaningful way. Mr Pinner acknowledged that it was open to me to make some adjustment on account of section 75(2) factors in favour of the wife. Whilst the children had not seen their father for some time by the time of trial, there was agreement that there would be therapeutic counselling involving the children and the husband (and the wife, if the therapist sought her involvement). There is therefore some prospect of the husband re-establishing his relationship with the children. Mr Pinner also submitted that I should not see the future as entirely “doom and gloom” as far as the prospects of the husband earning wages from which child support could be paid.
It is very difficult to form a view about the husband’s employment future. He would like to work in property development (purchasing real estate and improving then selling it). If he is unable to do that, he has no clear plan for employment. His foray into delivery work did not turn out well for him, and he regarded the work as hazardous.
Whilst I accept that the wife is likely to have the great majority of the care of the children for the future, and they are still some years away from completing their education, I also accept that the husband would like to be involved in their lives and this may eventuate. I also consider that the wife is likely to have the greater burden of the financial support of the children, but also consider that the husband would contribute if he was in a position to do so. He certainly has demonstrated the ability to work in a number of roles before, during and after the period of cohabitation, and I cannot conclude that he will not exercise his well established capacity to engage in employment for remuneration. I therefore adjust the wife’s contribution based assessment by 8% on account of s 75(2) factors, to give her an overall entitlement of 68%, and the husband 32%.
As appears from the table of assets and calculations of interests set out below, this entitles the husband to keep assets valued at $127,454, and receive a further payment of $195,423.
The wife will retain or receive assets totalling $910,035, as per the table.
Overview
There is a significant disparity in the amounts being received/retained by the wife and the husband. This disparity is, as I have found, based on my assessment of the parties’ contributions and relevant 75(2) factors.
In allowing the wife to keep the business, I am mindful of the fact that this has been included in the pool at a negative value, although it owns assets of some value in the form of the factory and the stock. This negative value arises, in substantial part, because the wife has borrowed funds against Peninsula property, and lent them to the business. That loan is an asset in her hands, but if the business repays the funds advanced by the wife in full, I am satisfied that she will apply them, as she has said she will, to the repayment of the loan on the Peninsula property and will subsequently transfer that asset to her nieces.
Conclusion
The husband sought that I order the sale of the home now, rather than giving the wife an opportunity to buy out his interests. I do not consider that this is appropriate. The Y property has been the children’s home for many years now, and the wife wants the opportunity to keep it. The wife has run this business for a considerable time, and has put a great deal of effort, and inherited funds, into its activities. It would be a significant injustice to her to order an immediate sale of the assets in the terms sought by the husband. Equally, however, it would be an injustice to the husband to defer the payment of his entitlement to him for any great length of time. The wife proposed that he be paid within 60 days, with a sale of Y property to take place in default. That is, in my view, an appropriate course for me to adopt.
I am satisfied that the overall result is just and equitable in all the circumstances of this case.
I will now set out the asset table as found by me and the calculations of the parties’ interest in accordance with this judgment:
The asset pool
I will set out now the items that I consider form the asset pool in this case (including superannuation), relevant liabilities, and add backs.
Assets – including add-backs
N Road, Y $919,370
Peninsula property $151,000
R property $ 88,333
Volvo Station wagon $ 8000
Truck and equipment $ 200
Metricon cheque $ 7221
Money removed from company account $ 5000
Ford Capri $ 3000
Motor bike $ 2000
Vespa $ 7500
Tools and equipment including ride on mower $ 4000
Company valuation ($187,335)
Superannuation
Husband $ 3000
Wife $ 27,000
Total $1,038,289
Liabilities to be deducted
Debt to Y Council $ 12,000
School fees 2008 $ 9000
Credit card
Husband $ 4000
Total $ 25,000
Net Assets ($1,038,289 minus $25,000) = $1,013,289
Husband to receive 32% of $1,013,289 = $324,252
Mr F’s report costs Wife should receive $1375 from husband
Assets held or received by husband
R property $ 88,333
Truck and equipment $ 200
Volvo station wagon $ 8000
Metricon cheque $ 7221
Money removed from company account $ 5000
Ford Capri $ 3000
Motor bike $ 2000
Vespa $ 7500
Tools and equipment $ 3200
Superannuation $ 3,000
Total $127,454
Husband to receive 32% of net asset pool = $324,252
Less assets held or received by husband $127,454
Wife to pay husband $196,798
Less cost of Mr F’s report ($1375) = $195,423
Wife to pay husband $195,423
Assets held or retained by wife
N Road, Y $919,370
Peninsula property $151,000
Company valuation ($187,335)
Superannuation $ 27,000
Total $910,035
I certify that the preceding two hundred and eighty nine (289) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt
Associate: Cecilie Hall
Date: 15 September 2008
IT IS NOTED that publication of this judgment under the Compagna and Aldo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
Key Legal Topics
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Damages
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Duty of Care
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Negligence
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