Celano and Natoli

FAMILY COURT OF AUSTRALIA

CELANO & NATOLI

[2014] FamCA 1127

FAMILY LAW – PROPERTY – where the husband was the main income earner during cohabitation – where the wife has been out of the workforce substantially during cohabitation – where one child of the marriage – where the wife would need retraining to join workforce – where the wife carer for her elderly mother – where the husband has an entitlement to retirement pension and lump sum – where the husband received a gift of property from his father during marriage – where parties’ paid legal fees included in asset pool – consideration of s 75(2) factors – consideration of appropriate and just and equitable orders.

Family Law Act 1975 (Cth) ss 75, 79

Bevan& Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Russell & Russell (1999) FLC 92-877
Scott & Danton (2014) FamCAFC 203
Stanford v Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

APPLICANT:

Mr Celano

RESPONDENT:

Ms Natoli

FILE NUMBER:

PAC

1766

2011

DATE DELIVERED:

16 December 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17, 18 and 19 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

A J & Associates Lawyers

Orders

That within three months from this date the husband pay to the wife $71,843 and concurrently with the payment, the wife do all things necessary to transfer to the husband her interest in the property at K Street Suburb W, South Australia provided always:
(a) that concurrently with the transfer the husband refinance the present mortgages secured over the property to his name so as to release the wife from all or any liability in regard thereto
(b) that the wife pay as they fall due and payable all outgoings, insurances and mortgage payments in regard to the property pending transfer of the property to the husband.
That within three months from this date the husband do all necessary things to transfer to the wife his interest in the property at X Street Suburb D, NSW provided always:
(a) that concurrently with the transfer the wife refinance the present mortgages secured over the property to her name so as to release the husband from all or any liability in regard thereto
(b) that the wife pay as they fall due and payable all outgoings, insurances and mortgage payments in regard to the property pending transfer of the property to her.
That within 14 days from this date the husband do all things necessary and sign all documents to transfer to the wife his interest in the joint share portfolio with P Securities.
That within two months from this date the wife make available for collection by the husband or his agent the following items of personalty:
(a)       The husband’s CD collection;
(b)       The husbands Hi Fi stereo system;
(c)       Three Silver picture frames, if in the wife’s possession or control;
(d)       The husband’s vinyl records;
(e)       Half of the rugs previously at the W property;
(f)       Bulova wristwatch and gold cufflinks;
(g)       Wooden wall mirror; and
(h)       Rolex box with certificate of authenticity.
That within two months from this date the wife do all things necessary to withdraw or discontinue, as applicable, proceedings … commenced by her in Italy against the husband and in so doing procure a discharge of any orders making provision for child or spousal maintenance to the effect that the husband will have no liability arising from those proceedings.
Liberty to apply as to implementation or enforcement of these orders.
That any application for costs to be made by way of Application in a Case supported by an affidavit and filed within one month from the date of these orders.
Otherwise all applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1766 of 2011

Mr Celano

Applicant

And

Ms Natoli

Respondent

REASONS FOR JUDGMENT

The matter for determination is the question of property settlement as between the applicant husband and the respondent wife.
Both parties seek disparate orders as to property and there remains various assets held by both parties in joint names. Clearly it is just and equitable for the court to make orders adjusting the parties’ property interests.
The husband was born in 1959 in Italy. At the time of trial he was 55 years of age. At the time of trial the husband was living in Italy and employed as an officer with an Italian government department.
The wife was born in 1962 and at the time of trial was 52 years of age. She lives in Sydney.
The parties did not cohabit prior to their marriage in 1996.
There is one child of the parties’ marriage V born in 1998. The child at the time of trial was 16 years of age and residing with the mother in Sydney. The child is in year 10 at a private Catholic high school.
The parties separated in about November 2010. At the time of separation the parties were living in Asia.
The husband was previously married and there are two adult children of that marriage aged 27 and 25. From time to time these children holidayed with the parties with the wife attending to their household and domestic needs during such periods. The husband asserts an ongoing obligation to pay child support for the younger of the two adult children until that child attains the age of 30 or becomes financially independent.

At Cohabitation and Thereafter

At the commencement of the parties cohabitation they had the following assets:
a)Husband:
BMW motor vehicle that the wife conceded could have been worth $35-$40,000
b)Wife:
Property at A Street, Suburb B,
Savings of about $15,000 applied to the wedding,
Accumulated superannuation of about $10,000,
A small car,
Accumulated long service and other leave entitlements.
The B property had been purchased by the wife in 1989 for the sum of $102,950 with the purchase price comprising funds available to her at that time and a mortgage advance of $60,000. The B property was sold in April 2004 for $185,000.
At the commencement of cohabitation the husband was working as an Italian government officer in Australia on a full-time basis. He remained in that employment throughout cohabitation. The husband’s position as a government employee involved the family relocating to various places overseas. The husband received allowances for his dependent wife and child as part of his salary package. From 1996 to 2001 the family resided in Southeast Asia, although the wife and child returned to Australia from May 1998 until December 1998 as a result of domestic unrest in Southeast Asia at that time. From 2001 to 2003 the parties resided in Italy. Thereafter from September 2003 until 2008 the parties resided in Adelaide, South Australia. In 2008 the husband received a posting to Asia. The husband took up his position in Asia alone, without his wife and child, it being agreed that the wife would remain in Australia until the child completed the school year in 2009. However the wife and child did not join the husband in Asia until January 2010, with the parties separating in November 2010 when the wife and child returned to Australia.
During the parties’ cohabitation the wife supported the husband in his duties including attending functions, entertaining and preparing meals and offering assistance and support to other government families and attending cultural and charity events.
The wife was working full-time as a primary school teacher for the Catholic Education Office and had done so for about twelve years full time prior to marriage. The husband’s income at the commencement of cohabitation was superior to that of the wife. The wife ceased employment shortly before the husband was posted to Southeast Asia in 1996 and thereafter remained out of employment throughout cohabitation, devoting herself to the household and the child. The wife would now be required to undertake a full-time course of study for about twelve months so as to renew her teacher’s qualifications as a consequence of a long absence from the workforce. She could obtain other work as a teacher’s aide. However her primary concern is the care of her elderly mother.
The wife’s present income comprises a carer’s payment that relates to her elderly mother of about $59 per week, family tax benefit payment of about $170 a week, irregular child support from the husband and otherwise income by way of rent from the two rental properties with that income applied to mortgage payments and property outgoings.
Subsequent to marriage the parties resided in rental accommodation in Sydney for a period.
In April 1999 while living in Southeast Asia, the parties jointly purchased the present matrimonial home at X Street, Suburb D (“the D property”). The D property was purchased for $435,000 and partly funded by a mortgage borrowing of $348,000. The balance of purchase monies was from monies then available to the parties from the husband’s income.
In 2001 the parties invested €80,000 in managed funds with the Bank of Italy in the wife’s name. This sum was depleted subsequently as the husband was required to pay €27,000 to his former wife for unpaid child support pursuant to orders made by the Italian courts. Following separation the wife removed the husband’s authority to operate on this account.
In July 2001 the husband’s father Mr Celano Snr gifted to the husband an apartment property at Town C (“the C property”), in Italy. During the course of these proceedings and on 30 December 2013 the husband unilaterally purported to renounce the benefit conferred on him by the deed of gift by his father. The subject of agreed valuation that values the apartment at €84,000 as at January 2014. As at the date of valuation the apartment was leased at an annual rent of €4,800, and the lease will terminate in 2018. The valuation describes the husband as beneficial owner subject to a tenancy for life in favour of the husband’s father.
The ownership of the C property is the subject of a report from an Italian lawyer (Exhibit B) that confirms the transfer of the subject property from the husband’s father to the husband was registered on 19 July 2001 at the Town C real estate registry. Subsequently, at least as at the date of the report, 16 September 2014 no other transaction was registered as against that property. The report notes:
… A specific search in the name of [Mr Celano Jnr] at the [C] real estate registry confirms that the property is still registered in his name and has not been transferred to third parties, nor returned to his father, Mr [Mr Celano Snr].
In 2004 whilst the parties were residing in Adelaide they purchased a property at K Street, Suburb W, South Australia (“the W property”). The property was purchased in the wife’s name for $570,000. The purchase price substantially comprised a mortgage advance of $427,500. The balance of the purchase price and purchase costs came from the sale of the wife’s home unit property at Suburb B and about $3,000 from savings from the husband’s income. Subsequent to the wife and child moving to Asia in January 2010, this property was tenanted.
In 2004 and 2009 the parties purchased a total of 233 Commonwealth Bank shares in the wife’s name.
In 2008 the parties borrowed $200,000 against the security of the D property and purchased a share portfolio.
In 2008 whilst the parties resided in Adelaide the husband suffered a head injury in a motor vehicle accident. He subsequently underwent brain surgery in Adelaide in July 2010. He received thereafter a compensation verdict of $167,473. After payment of legal fees, child support arrears and other expenses the husband received net funds of $104,330 that he paid into his BNL account …72. He asserts that he has substantially expended those funds on:
a)Living expenses including rent;
b)Medical expenses;
c)Costs of relocating to Italy in 2012;
d)Legal fees for his former solicitors that totalled $67,351; and
e)Ongoing child support for his older children.
As a consequence of his ongoing employment through the Italian government the husband has an entitlement to a pension on his retirement. The nature and extent of that pension entitlement was the subject of much dispute at trial.
Subsequent to the parties’ separation in November 2010 the wife has resided at her parents’ home at Suburb M in Sydney. The wife thereafter has managed the investment property in South Australia and the former matrimonial home at Suburb D that has also remained tenanted.
On 13 January 2011 the wife withdrew funds totalling $200,000 from the two HSBC mortgage accounts secured over the property at Suburb W, South Australia. In an email to the husband, the wife informed him that she had done so “for the exclusive purpose of protecting all funds”.
Since separation, the rental payments in relation to both properties have been applied to meet monthly mortgage repayments.
As at the date of trial mortgage balances secured over the two properties were firstly as to the W property $274,815, as to the D property $154,676 together with the equity loan having a balance of $204,987.
Subsequent to the wife’s withdrawal of funds that she was required by court order to maintain a capital sum of $100,000. She has not. Funds have been applied by her:
a)To meet mortgage arrears that has accrued from September 2009;
b)Storage fees in relation to the parties’ personalty;
c)Her legal fees paid to trial of $70,585;
d)Maintenance in relation to the two properties including about $8,000 on renovations to the D property;
e)Life insurance premiums totalling about $11,500 for about twelve months in respect to a life policy relating to the husband;
f)Shortfall in mortgage payments when one of the properties was vacant for a period; and
g)General living expenses for herself and the child.
The balance at trial remaining was $91,598.
Subsequent to separation the husband has had a child support liability from February 2012 in relation to the child V and he has provided other monies for the benefit of the child since that time. The husband was delinquent in relation to his periodic child support assessed at about $2,000 per month and in December 2012 he had the sum of $10,247 garnisheed from a personal injuries verdict received by him. The husband’s current child support liability is assessed at $143 per month.
Prior to separation the husband’s income had been paid into a joint BNL account. Subsequent to separation the husband diverted payment of his income to a separate BNL account in his own name.
The husband’s employment was relocated to Italy in May 2012. At the time of his transfer he remitted funds from his Asian bank account to Italy that totalled approximately €16,000. From those funds he was required to meet an outstanding child support obligation in relation to his older children in Italy, gifted to his sister €3,000 and provided other funds to assist his mother.
In May 2011, prior to his return to employment in Italy, the husband purchased an Audi motor vehicle in Asia for €53,000 having sold an older vehicle in his possession at that time.
In March 2014 the Volvo car retained by the wife at separation was written off in an accident. The wife received a $17,000 insurance payout and with those funds purchased a Hyundai car for $17,000.

The Husband’s Italian Pension Entitlement

The husband’s employment with the Italian government has continued throughout cohabitation and thereafter and as such the husband has pension entitlements in accordance with the relevant rules for public employees.
The report as to the husband’s entitlements (Exh B) reveals that although the husband is 55 years of age he will be able to retire early in the first days of July 2015 as his pension contributions are deemed to have accrued for a period of 41 years 8 months and 12 days by reason of his international postings during the period of his employment.
Early retirement allows access to a pension, before the old age pension, upon condition that certain specific contribution requirements have been met. The report concludes that the estimate of the gross annual pension entitlement of the husband as at 15 September 2014 would be in the sum of €20,432 ($30,239AUD) per annum.
In addition to his annual pension the husband has an entitlement to an end of service indemnity or termination indemnity (“liquidazione”). The indemnity would be equal to 80 per cent of his metropolitan monthly salary which will accrue in 2015 multiplied by the number of years useful for the purposes of calculating the indemnity. The report does not provide a calculation as statements of contributions for the years from 1982 to 1992 are unavailable. However it is to be inferred that the lump sum benefit payable to the husband will be significant.
It is noted that the husband’s entitlements significantly are calculated by reference to his actual and/or deemed a period of service. As at the date of marriage he was 37 years of age and had been in the employ of the Italian government from the age of 18, nearly 20 years prior to marriage.
The husband anticipates a move in his employment to Central America in early 2016. At that time he anticipates that his income will be in the order of €10,000 per month.

Property Adjustment

The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton (2014) FamCAFC 203 (21 October 2014).
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and it is conceded by counsel for both parties that it is appropriate for the court to make orders altering their present property interests. It is appropriate to do so.
Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).
The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

The Present Assets and Liabilities of the Parties

A draft joint balance sheet was provided by the parties towards the conclusion of the trial (Exh M) and during the course of final submissions that was fine-tuned, as it were, to the following agreed pool subject to discrete issues (#) referred to below:
Assets:
Joint               X Street, Suburb D      $1,075,000
Husband         Apartment Town C Italy  $   125,000#
Wife               K Street, Suburb W  $ 875,000
Wife               HSBC account – 412  $          500
Wife               HSBC account – 087  $            21
Wife               HSBC account – 101  $            41
Wife               St George bank account – 705  $     1,948
Wife               St George account – 254  $          14
Wife               St George account – 249  $   91,598
Husband         HSBC account – 118  $             7
Husband         BNL account – 240  $      1,805
Wife               1406 CBA shares  $ 109,000
Joint               Share portfolio P Securities  $ 246,948
Wife               Italian managed funds  $    78,894
Wife               Legal fees paid   $    70,000
Husband         Legal fees paid   $    67,000#
Wife               Hyundai car  $   15,000
Joint               Household contents  $     5,000
Husband         Audi vehicle  $   35,000
$2,797,776
Liabilities
Wife               HSB home loans W property  $   274,815
Joint               HSB home loan D property   $   154,676
Joint               HSB equity loan D property            $   204,987
$ 634,478
As to the parties’ present assets and liabilities for adjustment purposes:
a)It was contended by the husband that his interest in the apartment property in Italy be considered a financial resource. The wife contended that the evidence was that, notwithstanding the husband’s purported unilateral declaration renouncing the gift to him that it was his and should be regarded as an asset. There is no doubt that the property was at all relevant times his. The purported disposition for no consideration in the circumstances should be disregarded. It will be included in the pool. The property has an approximate value of $125,000AUD.
b)The husband contended that the proceeds of his personal injury claim having been expended should be omitted from the pool of assets. In circumstances where there was a significant financial disparity in terms of available income favouring the husband post-separation, where the legal fees paid by the wife from the mortgage redraw are to be added back to the pool, where had the husband not expended his personal injuries claim that sum would have been in the pool of assets for consideration, then it is appropriate that the husband’s legal fees paid from his personal injuries claim be included in the pool of assets in considering appropriate adjustment orders. Accordingly the sum of $67,000 will be notionally included.
c)It was agreed that exchange rates where relevant should be those approximate to the time of judgment. The present approximate rate of exchange published by the RBA for the Euro is $1.48AUD.
Accordingly the asset pool has a net value of $2,163,298.

Contributions

The Full Court of the Family Court in Dickons & Dickons [2012] FamCAFC 154 said:
23.We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
It is contended on behalf of the wife that contributions overall should favour the wife 65 per cent and 35 per cent to the husband. The husband contends they should favour the wife 55 per cent and 45 per cent to the husband.
Initial contributions significantly favour the wife as outlined above. The property acquired with the equity from her B property represents a significant percentage of the gross pool. The husband brought into the marriage his interest in the Italian property without contribution by the wife.
The husband was the primary income earner during cohabitation and that income facilitated the parties acquiring assets and investments and servicing debt related thereto. Apart from the Italian property there is nothing to differentiate the contributions of the parties during cohabitation. The wife dutifully followed the movements relating to her husband’s occupation until final separation.
The wife undertook the primary parenting role in regard to the child of the marriage both during cohabitation and after separation. Particularly after separation she did so with little assistance from the husband.
Much has been made of various financial machinations during and after cohabitation. Ultimately nothing significant arises therefrom by reason of some notional funds added back to the asset pool for adjustment.
The contribution assessment contended by the wife would create a resultant disparity between the parties of about $648,000. An adjustment of such magnitude is in the circumstances outlined above not called for in the context of contributions especially where the husband’s Italian property is in the pool for adjustment purposes.
However overall contributions should favour the wife 55 per cent to the husband’s 45 per cent. This would create a disparity between the parties of about $216,329.
Orders adjusting the property interests of the parties will have no impact on the earning capacity of either party.

Section 75(2): Relevant Factors

The relevant matters set out in s 75(2) are discussed below.
The wife is aged 52 and asserts no relevant ill health. The husband is aged 55 and also asserts no relevant ill health.
The husband continues in full time employment and expects to earn, including allowances, about €10,000 ($14,800AUD) per month in his new posting. That equates to an annual salary of about $177,600. He has no plans for early retirement and is capable of working until he elects to retire.
The wife does not work. She has elected to care for her elderly mother and receives a carer’s pension from Centrelink in that role. The wife has experience as a teacher although she would need to retrain. It is readily apparent that she has some capacity to earn income that she chooses not to exercise. Yet even if she did there is no evidence to suggest she would earn anything like the husband’s salary.
The child of the marriage at trial was aged 16 and attending school. He will be part of the mother’s household into the foreseeable future. The wife has very little support from the husband in relation to the physical support of the child.
The wife has no superannuation. She receives some government benefits as her mother’s carer. The husband has accruing retirement pension and lump sum benefits that are related to years of service. He was in service for many years before the parties married and has been for a further period after separation. His retirement income will be, from present indications, over $30,000 per annum plus the receipt of a lump sum.
Apart from the child, the parties have only their own support to provide for. The husband asserts some obligation to pay child support for the youngest adult child of his former marriage but there is no evidence to suggest the he meets that obligation on a regular basis.
The wife has made over the years of cohabitation a significant contribution to the husband’s earning capacity. She has moved with him in his various postings with the child to the detriment of a possible career in teaching. This has facilitated the husband’s income no doubt increasing over the years and he accumulating prospective retirement benefits.
The wife has been disadvantaged in terms of her earning capacity by reason of her lengthy absence from the work force.
The proposed contribution based property adjustment will see her with about $216,000 more than the husband. Yet he will retain a strong income stream and continue to accrue retirement benefits into the future.
The husband’s child support obligation for the 16 year old son is modest at $100 per week with the wife then required to meet all of the child’s needs.
The asset pool has a net value of $2,163,298. An adjustment to reflect the above factors of 10 per cent in favour of the wife would see a further disparity between the parties of about $432,000 with an overall disparity of about $648,000 or about 30 per cent of the pool.
The husband submitted that a 10 per cent adjustment would be in the upper end of the range. The wife contended for an adjustment in the range of 15-20 per cent.
It is appropriate that a further adjustment to the contribution based entitlements of the parties be 10 per cent in favour of the wife.

Overall

Overall the property pool should be divided as to the wife 65 per cent and to the husband 35 per cent.
The wife has an entitlement in money terms of $1,406,143.
The wife has:
K Street, Suburb W  $   875,000
HSBC account – 412  $          500
HSBC account – 087  $            21
HSBC account – 101  $            41
St George bank account – 705  $      1,948
St George account – 254  $           14
St George account – 249  $    91,598
1406 CBA shares  $ 109,000
Italian managed funds  $    78,894
Legal fees paid   $    70,000
Hyundai car  $    15,000
Household contents  $      5,000
$1,247,016
HSB home loans W property  $   274,815
$   972,201
The wife would have an entitlement to further assets to the value of $433,942.
The wife seeks orders that in effect she retain what she has in her name as set out above and that the husband transfer to her, unencumbered, the D property that has a value of $1,075,000. At present the property has a net value of $715,337. Should she retain the D property she would be required to pay to the husband a cash sum of $281,395. She has cash or investments totalling about $281,440 available to her or she could refinance the property or properties.
However this would leave the wife with no investment or cash portfolio.
The husband would retain:
Cash sum from wife   $ 281,395
Apartment Town C, Italy  $ 125,000
HSBC account – 118  $            7
BNL account – 240  $     1,805
Share portfolio P Securities   $ 246,948
Legal fees paid   $    67,000
Audi vehicle  $    35,000
$ 757,155
The husband relevantly sought property orders that in summary provided:
a)That he transfer the D property with existing mortgages to the wife provided she refinances the mortgages into her name;
b)That the wife transfer to him the Italian managed funds and the W property with existing mortgages to the husband;
c)That the husband transfer the share portfolio with P Securities to the wife;
d)That the wife provide to him certain items of personalty, to which she agrees as to some;
e)That the wife withdraws certain proceedings pending in Italy between the parties, to which she agrees.
The parties are at odds in relation to the fate of the W property.
In the event that the husband retains the W property he would retain the following assets:
K Street, Suburb W  $   875,000
Apartment Town C, Italy  $ 125,000
HSBC account – 118  $             7
BNL account – 240  $      1,805
Legal fees paid   $    67,000
Audi vehicle  $    35,000
$1,103,812
HSB home loans W property  $   274,815
$   828,997
He would need to pay to the wife a cash adjustment of $318,791. He can do that by the wife retaining the P Security share portfolio and a payment of the balance of $71,843 by refinancing the W property.
After the payment to the wife of $71,843 the husband will retain net $757,154.
This would provide a just and equitable solution that sees the wife with assets from which she will receive dividend or interest income in the years ahead and the husband with a capital asset in the form of realty and his retirement benefits.
The W property will be retained by the husband.
The wife will retain the following:
Cash sum from husband  $    71,843
Share portfolio P Securities  $ 246,948
X Street, Suburb D      $1,075,000
HSBC account – 412  $         500
HSBC account – 087  $           21
HSBC account – 101  $           41
St George bank account – 705  $     1,948
St George account – 254  $          14
St George account – 249  $    91,598
1406 CBA shares  $ 109,000
Italian managed funds  $    78,894
Legal fees paid   $    70,000
Hyundai car  $    15,000
Household contents  $     5,000
$1,765,806
HSB home loan D property   $   154,676
HSB equity loan D property            $   204,987
$1,406,143
Orders will be made accordingly.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 December 2014.

Legal Associate:

Date: 16 December 2014

[2014] FamCA 1127

16 December 2014

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