Cartham and Cartham

[2008] FamCA 975

FAMILY COURT OF AUSTRALIA

CARTHAM & CARTHAM [2008] FamCA 975

FAMILY LAW – PROPERTY - extent of financial contributions and the weight to be accorded to them – credit of parties.  Ex tempore judgment.  Orders made including superannuation splitting order.

Family Law Act 1975 (Cth) ss 75(2), 79

Hickey & The Attorney General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT: Mr Cartham

RESPONDENT: Ms Cartham

FILE NUMBER: CSC 75 of 2007

DATE DELIVERED: 10 October 2008

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 10 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Willis

SOLICITOR FOR THE APPLICANT: Williams Graham Carman Solicitors

COUNSEL FOR THE RESPONDENT: Ms Brasch

SOLICITOR FOR THE RESPONDENT: Miller Harris Lawyers

Orders

1. Within 60 days of the date of these Orders:-

   (a)The Wife will transfer to the Husband all of her right, title and interest in the property situated at S in the State of Queensland (“the S property”) being the whole of the land described as Lot … on RP…, County of …, Parish of …, Title Reference ….

   (b)The Husband will indemnify the Wife and cause the wife to be released and discharged from any and all liability with respect to mortgage number … and all rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.  The Husband shall be responsible to pay all municipal rates and water rates in respect of the S property and shall be liable to pay all instalments of principal and interest in respect of the said mortgage from today’s date.

2. In the event that the Husband is not able to comply with clause 1 (b) and cause the Wife to be released and discharged from any and all liability with respect to mortgage number …2 within the prescribed time then the Husband and the Wife will do all acts and things and sign all necessary documents to effect a sale of the S property and by way of consequential arrangement that shall be made for the purposes of effecting a sale:

   (a)The listing price for the S property shall be as reasonably determined by the Husband;

   (b)The real property shall be listed for sale by private treaty with such real estate agents as determined by the Husband.

   (c)In the event that the S property has not been sold by or before a date four (4) months from the date of these orders then the Husband and the Wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the S property upon the following terms:

   1.1.1.the auctioneer shall be as appointed by the Husband

   1.1.2.the auction shall take place by two (2) months after the deadline date for sale by private treaty

   1.1.3.the reserve price shall be recommended by the selling agent;

   1.1.4.the Husband shall be solely responsible for payment of all sale and auction expenses payable before the S property is auctioned

   (d)That in all other respects the Husband shall have the conduct of the sale of the S property.

3. Upon completion of the sale of the S property pursuant to clause 2 above then the proceeds of the sale shall be applied as follows:-

   (a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the S property.

   (b)Secondly, to discharge mortgage number …2 and any other encumbrances affecting the S property.

   (c)Thirdly, the balance to be paid to the Husband.

4. Within 60 days from the date of these Orders the Wife will pay to the Husband the sum of $106,805.00.

5. That in default of the payment referred to in clause 4 above the Husband and the Wife shall do all acts and things necessary to cause B Company Pty Ltd to effect a sale of the property situated at T Street, …, in the state of Queensland (“the T Street property”) being the whole of the land described as Lot … on RP…, County of …, Parish of …, Title Reference ….

6. That in default of the payment referred to in clause 4 above and to give effect to clause 5 above the Husband and the Wife forthwith do all acts and things and sign all necessary documents to cause B Co Pty Ltd to effect a sale of the T Street property and by way of consequential arrangement that shall be made for the purposes of effecting a sale:

   (a)The listing price for the T Street property shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Queensland Law Society.

   (b)The T Street property shall be listed for sale by private treaty with such real estate agents as determined by the wife.

   (c)In the event that the T Street property has not been sold by or before a date three (3) months from the date of these orders then the Husband and the Wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the T Street property upon the following terms:

   (i)the auctioneer shall be as agreed to between the parties and failing agreement as nominated by the President of the Queensland Law Society

   (ii)the auction shall take place by two (2) months after the deadline date for sale by private treaty

   (iii)the reserve price shall unless agreed upon by the parties be as proposed by the auctioneer

   (iv)the Wife shall pay and be responsible for payment of all auction and selling expenses payable before the T Street property is auctioned

7. Upon completion of the sale of the property referred to in clause 6 above the proceeds of the sale be applied as follows:-

   (a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the T Street property.

   (b)Secondly, to discharge mortgage number …4 and any other encumbrances affecting the T Street property.

   (c)Thirdly, to pay to the Husband the sum of $106,805.00 together with interest calculated from the day which is 30 days from the date of these Orders to the date of payment at the rate prescribed under the Family Law Rules.

   (d)Fourthly, the balance to the Wife.

8. The Wife will sign and execute all documentation reasonably requested by the husband to cause the company C Business Pty Ltd to transfer to the Husband (at his expense) all of its right, title and interest in the BMW motorcycle registration number ….

9. The Husband and the Wife do all acts and things necessary to cause the money held in the trust account of Miller Harris Lawyers being part of the proceeds of sale of the property known as R property to be paid to the husband care of the trust account of Williams Graham Carman, Solicitors.

10. The Wife indemnify the Husband and cause him to be discharged from any and all liability with respect to the debt owed by the Husband to C Business Pty Ltd.

11. The Wife indemnify and cause the Husband to be discharged from all claims, suits, demands and all or any liability whatsoever with respect to B Company Pty Ltd and C Business Pty Ltd.

12. Unless specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    (a)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date save and except for the following items which will be made available to the Husband by the Wife:-

    (i)The Husband’s Passport.

    (ii)The Husband’s Citizenship Certificate.

    (iii)The Husband’s gold pocket watch.

    (iv)All the hand tools in the black and red tool box and the tool box, in the garden shed of the premises at T Street.

    (v)The comprehensive tap and die set in the garden shed of the premises at T Street.

    (vi)Various automotive diagnostic gear in the garden shed of the premises at T Street.

    (vii)Post hole shovel.

    (viii)High pressure water blaster (green).

    (ix)Circular saw.

    (x)Tile saw.

    (xi)100mm diamond grinding head.

    (xii)200mm diamond grinding head.

    (xiii)Electric jack hammer.

    (xiv)Router.

    (xv)Jig saw.

    (xvi)Saw horses.

    (xvii)Battery drill.

    (xviii)Collection of tutorial 3D computer art magazines and cds.

    (xix)Various software ie. Star Fleet Command and the Lost Chekhov Missions.

    (xx)Dremmel high speed grinder and its attachments.

    (xxi)12 volt automotive battery charger.

    (xxii)Various personal items, family photos, trade certificates and certificates of attainment (or such of these as are reasonably available).

    (b)Money standing to the credit of the parties in any bank account is to be become the property of the person so named as the owner of the bank account.

    (c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other, except as provided in these orders.

    (d)All insurance policies shall become the sole property of the owner named thereunder.

    (e)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

13. Pursuant to Section 106A of the Family Law Act 1975 the Registrar or a Deputy Registrar of the Family Court of Australia at Cairns is hereby appointed to execute all deeds and documents in the name of either party and do all acts and things necessary to give validity and operation to these Orders.

14. Orders 15 to 18 of these Orders are binding of the Trustee of the SS Superannuation Fund.

15. The base amount of $26,803.00 be allocated to the Wife out of the interest of the Husband’s interest in the fund.

16. Pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband’s interest in the fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

17. Order 16 has effect from the operative date.

18. The operative date for the purposes of order 17 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the fund.

19. Until such time as the superannuation split to the Wife pursuant to these Orders can be rolled over in to a separate account to the Wife:-

    (a)The Husband shall provide to the Wife no less than 28 days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the fund.

    (b)The Husband shall direct and authorise the Trustee of the fund to communicate with the Wife and/or any person authorised by her in writing:-

    (i)To answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund, and

    (ii)To provide to the Wife and/or her authorised representative a copy of any notice of any application or request by the Husband which seeks release of the entitlements in the fund in so far as that release may effect the Wife’s entitlement in the fund pursuant to these Orders.

    (c)The Husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these Orders.

20. All substantive applications are dismissed.

21. This matter be removed from the list of cases requiring determination.

22. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

    IT IS CERTIFIED

23. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC75 of 2007

MR CARTHAM

Applicant

And

MS CARTHAM

Respondent

REASONS FOR JUDGMENT

1. Mr Cartham (“the husband”) and Ms Cartham (“the wife”) are a married couple whose relationship has ceased and they have been unable to resolve property matters between them.  The husband is aged 52 and the wife 49.  The parties commenced living together in 1995 and married in 1998.  They separated in January 2006.  There are no children of the marriage although the husband has a child of a previous marriage.

2. The assets and liabilities of the parties are agreed with the exception of whether the proceeds of the sale of a diamond ring sold by the wife ought to be added back into the pool.  The other issue is the extent of financial contributions and the weight given to it.  These include the contributions at the commencement of the relationship;  the contributions made during the marriage, particularly after the wife commenced a sales business in about 1999/2000;  the contributions following separation.

3. In terms of these proceedings the credit of both parties is in issue.  I do not intend to outline all of the facts in this case as this is an ex tempore judgment, however, I have had regard to all of the facts.  Any statement of fact in these reasons shall be regarded as a finding of fact, unless the contrary intention is clear from the context of the document. 

4. The Full Court in Hickey & The Attorney General for the Commonwealth of Australia (2003) FLC 93-143 reiterated the preferred approach in relation to the exercise of discretion in property matters pursuant to s79. This approach involves a number of steps: firstly, the identification of the property and its values; secondly, an evaluation of the party's contributions having regards to the s79(4) (a) (b) and (c) factors; see consideration of any adjustment to that assessment having regard to the relevant matters in s79 (4) (d), (e), (f) and (g) which I will refer to as the other factors including the matters referred to in s75(2); and finally, a review of the outcome against a just and equitable requirement.

5. In terms of the evidence of the parties, both raised the issues of credit, and dare I say it, neither witness was overly impressive.  I was concerned about the credit of the husband in terms of the explanation about credit cards.  He initially said he did not have credit cards and did not run up any debt.  He later conceded that he re-obtained an American Express card in May 2006, and I felt that he was prevaricating in terms of this particular evidence.  In terms of his loan application to Esanda, he was less than frank with that financial organisation. 

6. The wife was challenged in a number of areas and counsel for the husband asserted that she was strikingly dishonest – firstly, in terms of her clear exaggeration of the husband's expenditure, contained in paragraph 49 of the wife's affidavit.  Many of those items were brought in jointly and or in circumstances where both the parties spent freely on themselves and on each other.  The diamond engagement ring was purchased together with a Longines gold watch for the husband at a time when both the parties were working and in circumstances where the wife herself had a diamond engagement ring which was of greater value than that of the husband's.

7. The wife was also criticised in terms of failing to disclose material facts.  At separation the parties had two cars, which were leased through the wife's sales business.  And I will digress in relation to this: the husband and wife had purchased the husband a BMW motor vehicle shortly before separation.  At the same time they purchased for him a motorbike at a total cost of about $100,000.  The husband traded in a Honda motor vehicle and the wife's business was liable to a repayment regime of about $1400 per month.

8. The husband's evidence was that the vehicle was a surprise or a Christmas present.  The wife's evidence was that discussions had taken place about and the husband wanted these vehicles, and although at least a motorbike was given to him on Christmas Day.  I am satisfied that the husband knew about the purchase of these vehicles in advance and acquiesced with that purchase.  At the same time the wife said that she bought the vehicles on the basis that the husband had agreed to pay for his vehicle out of his wages.  The husband said that this was not the case.

9. The parties separated soon after Christmas in 2005 and the husband left the repayments for the car to the wife.  The wife on two occasions endeavoured to regain the car, which she eventually did in about January 2007.  The husband had the benefit of the car for about 12 or 13 months and on balance I prefer the wife's evidence in relation to the arrangements in respect of the payment of the car.  The wife was also criticised about calling the husband's hospitalisations -  "health farms", was the term of the phrase used by the wife -  but I make no adverse finding against her with regard to those remarks. 

10. I am concerned, as I said at the beginning of the analysis of the evidence the parties, about their evidence and will treat all of their evidence with some caution.  Mrs E gave evidence in relation to the husband's involvement in the business. I found her impressive and I accept her evidence.  Mrs U gave evidence in relation to the husband's involvement with the business.  I find she was a partisan witness and I give her evidence little weight.  Mr D’s evidence was not much help either way. 

11. In terms of the pool of assets, it was agreed and I will list them now. I indicate that I am going to do two lists of assets, one of the non-superannuation assets, the other of the superannuation assets.  The non-superannuation assets are:  S property, $310,000;  the money held in Miller Harris Trust accounts $67,463;  C Business (the sales business) $150,000;  B Company Proprietary Limited $358,000;  debt owed to B Company to wife $53,153;  the husband's motorcycle $11,750;  provision for legal costs add back $25,000.  The liabilities are:  the mortgage on S property $192,000;  the husband's credit cards $36,705;  the wife's credit cards $62,398;  the debt owed by wife to C Business $34,329;  the debt owed by the husband to C Business $10,188;  husband's capital gains tax liability from sale of a unit $8049.  These assets total up to $631,697. 

12. Of those assets and liabilities, on my calculation, there is $177,459 credited to the husband, and $454,238 credited to the wife.  This on the basis that the husband retains S property;  the money in the trust account;  the motorcycle;  and the add back for legal costs;  and on the basis of that, the husband retains the liability on the mortgage at S property;  his credit card debt;  and a capital gains tax liability.  This on the basis that the wife retains her sales business, B Company Pty Ltd;  the debt owed by B Company Pty Ltd;  has the liabilities of her credit cards of $62,398;  and the debts owed to both the husband and wife by C Business. 

13. The only issue regarding the pool of assets was with respect to the diamond ring sold by the wife in which she received some $27,353.  There was no issue that the ring was property accumulated during the relationship and there was no issue that the ring was paid into the general account of the business.  This must be seen in the circumstances the wife, had to a large extent, funded both her lifestyle, and albeit not to her consent, her husband's lifestyle, out of that account following separation.

1. She was paying about $1400 per month in respect of the BMW motor vehicle to which I have alluded earlier, and the mortgage repayments on the home which the husband occupied at S.  She was also paying, at least for part of the time, municipal rates and water rates.  The husband complained that the wife lived a lavish lifestyle in terms of the motor vehicles she drove, at least by implication, and the two overseas trips she had.  This must be seen in the context of the nature of the way the parties operated throughout the marriage and apparently since separation.  I have had regards to the principles in relation to add backs, and it seems to me I have a broad discretion, and exercising that broad discretion, I do intend to add back that sum of $27,353. 

2. In terms of contributions, the husband's initial contribution was a different property at S, which had a liability of between $10,000 and $29,000, it is unclear.  The evidence is that the property was purchased in May 1995 and had a mortgage on it of $169,000 and the husband said it was valued at that time, at $140,000.  That valuation did not seem to be challenged which would have given him a liability of some $29,000 or perhaps somewhat less.  For the purpose of these proceedings, I can assess that it would be somewhere between $20,000 and $29,000. 

3. The husband had about $6000 in shares and $70,000 in superannuation.  Thus his net assets including superannuation at the commencement of cohabitation were about $50,000.  I also have regard in terms of this initial contribution to the husband's entitlements through his employment over the five years previously noting that he left his employment in 1999.  The wife had equity in a property at W which she said at the time was about $70,000 although it only raised about $50,000 some years later.  She had a motor vehicle to the value of about $25,000, and my recollection is that it was not challenged, and superannuation of about $30,000. 

4. It seems thus, that the wife had assets including superannuation of about $100,000.  It seems to me that the wife's initial contributions were somewhat greater than that of the husband, and I have had regard to that fact.  From the commencement of the marriage until the parties left employment, in the case of the husband in about July 1999, and in the case of the wife in about December 1999, they both earned an income, and it seems consistent that their contributions over that period of time were equal.

5. The husband left the company in 1999 and received, he says, about $66,000.  The wife said that it was in that order although there may have been some tax paid out of it.  The wife cannot recall how much she received when she left in December 1999, but says it amounted to two cheques and it seems the only evidence I have is the husband's evidence that of a payment of about $40,000.  With this money and with other borrowings, and it is not clear on the evidence nor do I frankly need to determine, how the purchase of the sales business was funded, but it was funded out of the resources of the parties and a purchase from the wife's sister.

6. The wife has been engaged in that sales business since late 1999 or early 2000.  It is not challenged that the wife works hard in that business.  What is challenged it seems, is the effort the husband put into that business.  And that has to be seen in the context that the husband was not trained as a salesman, was unwell for at least two periods over that time, and left the real management of the organisation to the wife.  It is an agreed fact of which I have had regard to, that the husband was involved in five sales in about 2002, but not otherwise.  And I am satisfied on the fact the husband did not put nearly the effort or contribution to the business as that of the wife.

7. I do however have regard to the other matters in which the husband was involved, that is, the renovation of the business premises and the renovation of the former matrimonial home.  The wife was critical in terms of the effort he put in, but there is no doubt that he put the effort in.  In terms of the roles of homemaker and the like, it is clear that the parties had the benefit of a gardener from time to time, both before and after separation, and before separation a house cleaner, somebody to assist with a swimming pool and an ironing assistant.  Although on the evidence of the husband, he did the ironing.  He did the washing and the ironing. 

8. The third area in terms of contribution, were post-separation contributions.  As I have said before, the husband occupied the property at S whilst he was working fulltime earning a significant income, which at present is in excess of $50,000 a year.  The husband was asked but declined to make mortgage payments on a property, which had a rental value of between $280 and $300 per week.  The wife through endeavours at work at the sales business and through the capital of the sales business, and the break up of those two is not clear, met the mortgage instalments and has done so since separation for a period of just under two years.

9. The wife, as I understand the evidence, has made council rate and water rate payments, and the husband now pays telephone and electricity.  The husband said that he had difficulty transferring these services over. I do not accept his evidence in that regard that it was too difficult to transfer over, I am satisfied that he chose to make the best of those arrangements that were in place.  In April this year, the husband's partner moved into that home with her children, but still no efforts were made by the husband to contribute to the cost of his own accommodation.  This must be seen in the circumstances, where the husband was able to afford at least part of that cost;  in circumstances where the husband was able to afford to buy a $41,000 motor vehicle and meet the loan repayments in respect of it.  In addition the husband had the use of the company's BMW motor vehicle for a year, in circumstances where the wife was expected through her endeavours and through the capital of the business, to meet the loan repayments. 

10. Both parties have made contributions in terms of bequests.  The husband had received a bequest of about $20,000 in 2003 and the wife has received a bequest from her mother since separation of $13,000.  The parties sold investment properties subsequent to separation, the monies were held in solicitor's trust account, and I am satisfied that from at least December 2006 to August 2007, the husband was reluctant for those monies to be invested.

11. Whilst I do not accept the husband was a diligent worker in the sales business, I do not wholly accept the wife's version of his efforts, as that must be seen through the prism of her subjective views.  The husband's child did not live with the husband, but visited the parties it seems at least every 18 months and sometimes 12 months.  The husband paid child support at the appropriate rate from 1995 to 1999.  Between 1999 and 2003 he paid the minimum, which was some $25 per month.  It then increased eventually to $250 per month, which was paid out of the business.

12. The husband’s son came to visit the parties about once every 18 months or more often, and both parties were engaged in his care, although I am satisfied that this was primarily undertaken by the husband.  There was an issue in relation to a Kennon type argument, which sensibly in my view, was not pressed.  There was a claim that the husband had removed cash money of the wife's from at the time of separation.  The husband denied this and there is no evidence that he took the money and I make no adverse findings against the husband in terms of that issue.

13. The parties led a very expensive lifestyle, and it made any party's criticism of the other, somewhat hollow.  The husband inferentially complained that he did not receive payment for his work, but he received significant benefits from the business.  The husband tendered documents showing work at the sales business between 2000 and 2002.  It is not possible in my view to assess the amount of work done on such documents although it is of assistance in testing the veracity of witnesses.  The husband cared for the wife's mother, particularly in the final year of her life. 

14. I had to consider not only the contributions to the non-superannuation assets, but to the superannuation assets.  It is somewhat confusing in the evidence, in that each of the parties had significant superannuation in 1995, and it appears not to have increased greatly since that time.  The husband had some $70,000 in superannuation, which is now about $84,000 in superannuation, a part of it which looks like it has been accumulated since his employment commenced in recent times.  It is clear from the evidence that from time to time the parties used part of their superannuation for their investments for their lifestyle.  The same can be said about the wife, whose superannuation has increased from $30,000 to $44,000 since 1995. 

15. Whilst I intend to make a splitting order, I intend to apply all of the principles with regard to all of the factors regarding contribution to the whole of pool of assets, but split them separately.  And having regard to those contribution factors, I find that of the totality of the pool of all assets, the husband contributed 45 per cent and the wife contributed 55 per cent.  I am not asked to make any adjustments in relation to the other factors which in the circumstances of this case, is entirely appropriate that there be no further adjustment.  I must consider what is just and equitable and in doing so having regard to the age of the parties and their significant involvement within the workforce, it seems to me that a splitting order ought to be made.

16. It is not an issue as I said earlier that the husband should retain S property, and pursuant to these orders, he will be able to afford to buy that property.  The effect of the orders will mean that the husband will retain S property of $310,000, the trust account money of $67,463, the motorcycle $11,750 and the add-back of $25,000.  He will have liabilities of $192,000, the credit card of $36,705 and the capital gains tax of $8049, which all in all amounts to $177,459.  If I order payment to the husband of $106,805, that will leave him with a totality of $284,264. 

17. On the other hand with the wife, she would retain the sales business of $150,000, B Company Pty Ltd of $358,000, the debt owed by B Company to the wife of $53,153, her credit cards of $62,398, the debt owed by the wife to the sales business of $34,329, the debt owed to the husband of C Business of $10,188, which is a total of $454,238 from which if I deduct $106,805, leaves her with $347, 433. 

18. I have not yet dealt with the superannuation.  The husband has SS Superannuation of $80,450, LG Super of $4735.  The wife has SS Superannuation $44,552, making a total superannuation of $129,737.  It seems to me if I apply the same approach which is the 45:55 approach, there needs to be an adjustment in favour of the wife of $26,803 which would leave the wife with $71,355 and leave the husband with $58,382. 

19. In terms of the orders that I propose to make, I will provide for the transfer of the S property to the husband within 60 days.  It seems to me there will need to be some time for an orderly transfer of assets.  And I will provide that if the husband chooses not to take the property, it will be sold, the mortgage paid out and the proceeds paid to the husband.  I have not made an allowance for capital gains tax in terms of that property, as there was no evidence as to what that tax would be.  And it was clear that the husband wanted that property, and in the context of this order there is no reason why the husband cannot afford to buy that property or reduce the mortgage.  He will have some almost $180,000 in cash monies, although he will be left with a debt for credit cards and other expenses.

20. I will put in the default provision in the event the wife is unable or unwilling to raise $106,805.  Although in doing so it seems to me that she ought to be the one who should sell that property if she chooses to, as she has the skills and probably the desire to do better than someone else and I ought not to impose another agent upon her, that is if that is necessary.  I am providing that the wife, on behalf of her sales business transfer the BMW motorbike to the husband at his expense, and that the monies in the trust account be paid to the husband care of his solicitors.  I am putting provision in there for indemnities in relation to the sales business and the investment company.  I am including in particular, that the wife will take the liability of the husband to C Business as was discussed in exchanges between counsel and myself during the trial.

21. I intend to put in place a splitting order with a base sum of $26,803.  I have also ordered the return of the items which were agreed between the parties, although some need to be limited as to availability because of the vague nature of their descriptions, such as the term, "various personal items, family photos, trade certificates and certificates obtained".  I intend to formally make these orders on 20 October 2008.  That is a day when I will be in Cairns.  I do not intend to make the orders until late in the afternoon.  If any of the parties have further issues to raise in terms of my arithmetic and I acknowledge that my arithmetic sometimes lets me down, that can be raised on that day.  If there are any issues as to the form of the order, it can be raised before me on that day.  If the parties do not come back before me, I will simply make those orders.  If there are issues of costs, and I note that a document was marked for identification for that purpose that can be done in the normal course by an application. 

22. I will direct that these reasons be taken out and placed on the Court file.  I am not sure how long it will take for the reason to come out.  They sometimes take more than two weeks.  Does anyone need the reasons before they look at the orders?  I have taken the trouble of preparing some drafts of the orders.  Is there anything else I can usefully do in terms of this matter?  You will see it is pretty much based on the document which you prepared, Ms Willis.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              10 October 2008