Colbert and Colbert

[2008] FamCA 461

FAMILY COURT OF AUSTRALIA

COLBERT & COLBERT [2008] FamCA 461

FAMILY LAW – PROPERTY SETTLEMENT  – husband introduced equity in family home – husband to have future care of 14 year old son

Family Law Act 1975 (Cth)

Ferraro and Ferraro (1992) 16 Fam LR 1
Jones v Dunkell (1959) 101 CLR 298
Ghazal v GIO (NSW) (1992) NSWLR 336
Norbis v Norbis (1986) FLC 91-712
Lenehan v Lenehan (1987) FLC 91-814
Pierce and Pierce (1999) FLC 92-844
Money and Money (1994) FLC 92-485
Bremner and Bremner (1995) FLC 92-560
Way and Way (1996) FLC 92-702

APPLICANT: Mr Colbert

RESPONDENT: Mrs Colbert

FILE NUMBER: SYF 4281 of 2006

DATE DELIVERED: 23 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 12 & 13 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Nicholas Angelos

SOLICITOR FOR THE RESPONDENT: Mr Mcauley of Pryor Tzannes & Wallis

Orders

1.   The husband is to forthwith transfer to the wife all his right title and interest in the property at …, South Africa and the wife is entitled to hold the property absolutely thereafter to his exclusion. 

2.   On or before one (1) month from the date of these orders the husband is to pay to the wife the sum of $233,000.

3.   If the sum referred to in order 2 is not paid within the time specified or such further time as the parties agree in writing the husband is to do all things and take all steps necessary to sell forthwith the property known M for the best obtainable price and pay to the wife forthwith upon settlement of the sale the sum of $233,000. 

4.   Apart from the property specifically mentioned, each is entitled to retain absolutely all property of whatsoever nature and kind presently owned by that party at the date of these orders. 

5. If either party fails or refuses to execute any deed, instrument or document to give validity and effect to these orders then a Registrar or a Deputy Registrar of the Sydney Registry is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4281 of 2006

Mr Colbert

Applicant

And

Mrs Colbert

Respondent

REASONS FOR JUDGMENT

Proceedings

1. This is the determination of proceedings for settlement of property. 

2. The orders sought by the wife are set out in a Schedule to these Reasons.  It will be seen that she proposed the sale of a jointly owned property in South Africa, but her counsel indicated in closing that she was prepared to take up the husband’s last minute proposal to receive a transfer of his interest in it.  Her orders are meant to achieve an overall outcome of 60/40 in the husband’s favour, as argued on her behalf in closing submissions. 

3. The orders sought by the husband [exhibit 14] are also set out later in a Schedule. They propose transferring to the wife his interest in the South African property and otherwise each would retain what they now own or have already received.  His proposals are meant to achieve an overall outcome of 85/15 in his favour. 

Approach

1. Pursuant to s 79 of the Act the Court may not make an order altering the interests of parties in property unless it is satisfied that, in all the circumstances, it is just and equitable to do so.  In considering what order, if any, should be made, the Court is required to take into account the matters referred to in s 79(4).  By a line of well known authorities, that involves a number of sequential steps: (i) the identification of the property of the parties and its' value; (ii) an evaluation of their contributions of the kind described in s 79(4)(a) – (c); (iii) an evaluation of any relevant matters set out in s 75(2) and an adjustment to the contributions assessment if so required; and (iv) finally, to stand back and consider the outcome against the requirement to make orders that are just and equitable [eg Ferraro and Ferraro (1992) 16 Fam LR 1].

2. Before that it will be necessary to record the more central features of their financial history.  For that, the evidence came from the parties’ affidavits supplemented by some relatively brief cross-examination and the tender by consent of a number of documents.  Shortcomings in the affidavit evidence was ultimately addressed by an agreed chronology of the major developments [exhibit 6] and what follows takes up those matters as well as other matters not addressed there but to be found in their evidence. 

Background

1. The husband (61) was born in May 1947 and he came to live in Australia in 1974.  The wife (44) was born in July 1963 and she came to Australia in 1992.  That was when the parties met and began a relationship.  The husband had been previously married and he has two children, now adults, from that marriage. 

2. They began living together in November 1992 at the husband’s home at M.  They married in February 1993.  They have a son, now almost 15 years of age, who was born in August 1993.  They lived throughout their relationship at the M home and they separated in September 2005.  They both remained living there for a time until the wife withdrew to live elsewhere in February 2006.  She had formed a relationship with Mr G and they moved into an apartment together.  That relationship has since broken down.  The parties are now divorced. 

3. The child continued to live with his father and his relationship with his mother has been problematic.  It is agreed that he will continue to live with his father.  To what extent he will have contact with his mother is uncertain at this stage but the indicators give no cause for optimism of any change in his attitudes. 

4. The wife has recently moved to live in Perth.  The husband remains living at the M home with the child. 

History

1. Before they began living together the husband had finalised property settlement with his former wife.  In March 1992 he obtained a bank loan for $109,000 secured against the title to the M home and in May he paid his former wife $140,000, using the loan and additional funds he had available.  Whatever else might have been involved, he became the sole owner of the M home.  It is agreed that its fair market value at the time was $276,000.  Hence, upon settlement with his former wife the husband had equity in the M home in the order of $167,000. 

2. By November when the parties began living together the mortgage debt had been reduced to about $81,000.  His assets included the equity in the home of around $195,000 along with furniture and household contents.  On her unchallenged evidence, the wife had savings of around $5,000, personal belongings worth $2,500, and household contents worth $1,000. 

3. By the time of their marriage the mortgage debt on the M home had been reduced slightly to $79,725.

4. When they met the husband’s employment with a security company had just been terminated and he was unemployed.  He was out of work for the next 15 months or thereabouts until 14 February 1994 when he began work with AT Pty Ltd.  In the meantime he received government benefits of some description and he did some casual electrical and computer repair work. 

5. In April 1993 they took student boarders into the home and they received income of $190 per week on average from which they had to pay expenses.  This arrangement continued for the next six years until 1999.  It is the wife’s case, not displaced, that she saw to the arrangements necessary to board the students, including cooking and cleaning.  In 1993 she also took in dressmaking and clothing alterations from which she earned some income.  There is no common ground about how much she earned but that is of no material consequence.  It is the wife’s unchallenged evidence that the husband took what money she earned and controlled and monitored her handling of money; indeed, she says he strictly supervised their finances and he did not permit her to spend money without his knowledge or consent. 

6. She says the income from boarders and sewing was used in reduction of the mortgage whereas the husband says his earnings from repair work went to the mortgage.  The point is of no material consequence since it may be inferred from the history that whatever either earned was put towards living expenses and any financial commitments to be paid. 

7. By February 1994 when the husband began work with AT Pty Ltd the mortgage balance had been reduced to approximately $68,000.  Over the years to follow before the child began school in 1998 it is agreed there were reductions in the mortgage debt as follows:

   February 1995   $49,600
   February 1996  $39,000
   February 1997  $36,500
   February 1998  $35,000

8. About a year after the child commenced school the wife commenced work full time as a customer service officer for T Company.  She earned around $37,000 per annum and her salary went up over the years to follow.  At the same time the student boarding arrangements came to an end and the family was able to move back upstairs from the makeshift quarters they had created downstairs.  She also ceased the sewing and dressmaking. 

9. From this point there is further agreement about the reduction in the mortgage debt as follows:

   February 1999  $16,600
   February 2000  $2,400
   February 2000  virtually paid off

10. Later that year, in September 2000, the parties purchased in their joint names land in South Africa for 58 000 Rand which, it is agreed, is about $9,500 AUD.  They constructed a home on the land over the months to follow and traveled to South Africa to check on the progress.  The wife says, and it was not challenged, that she coordinated and negotiated the purchase of the land and the construction of the home.  The property was rented in late 2001 until early 2007 when it became vacant.  It has remained vacant since.  They agreed to list it for sale but it was in a dilapidated state, according to the wife, and she arranged for some maintenance to be done.  It was listed with another agent but has not sold. 

11. Two bank accounts were operated in South Africa - investment and savings, later consolidated into one account – and the rent was paid into one of the South African bank accounts.  The wife used the money in that account to pay the repair costs of 12,000 Rand [$1,597] and she used other money in that account for her own purposes.  It is agreed she received $68,450 which includes the money she spent on repairs to the property. 

12. They also operated a joint account with Easy Street and after their separation there were dealings with the savings in that account which will be mentioned shortly. 

13. In May and August 2004 the husband invested $6,000 and $5,000 for the child’s benefit with Esanda Investments.  The agreed list of assets did not include this investment. 

14. In August 2005 the wife changed her employment.  Her earnings for the year ended 30 June 2005 of $49,050 gives some indication of her salary and during the following year ended 30 June 2006 she earned $62,992.  For those same two years the husband’s taxable income was $69,437 and $73,976 respectively. 

15. As noted earlier, they separated in September 2005 and remained living at the home until February 2006. 

16. It was agreed at the outset of the hearing that the wife had been the primary carer for the child before separation and she had also been primarily responsible for the homemaking.  That is accepted not only by reason of the concession made but can also be inferred from the history. 

17. Returning to the Easy Street account, it is the wife’s evidence that they had savings of around $140,000 by the time of their separation.  In June 2006 she withdrew $67,157 from the account which left $64,405 and the husband then withdrew the balance and invested it elsewhere in his sole name.  Some evidence was given about the surrounding circumstances but they are irrelevant.  The historical fact of what occurred is the point of significance for present purposes. 

18. In April 2006 the wife purchased 1,000 shares in Paladio for $7,000.  Their agreed value is considerably less today. 

19. In July 2006 the wife began making child support payments, initially of $494.42 per month and then in October payments were increased to $629.50 per month.  In December 2006 the wife was assessed to pay child support at the rate of $870.25 per month. 

20. The previous month, November 2006, the husband’s employment had been terminated and he was entitled to termination payments totaling $20,798.  What he received in the hand after payment of tax was the subject of contradictory evidence but ultimately it seems to be agreed he received $7,474 net as well as a little less than $6,000 which he rolled into his superannuation fund. 

21. In June 2007 the wife purchased land at L in New South Wales for $81,000.  It is her case that her then partner, Mr G, lent her $40,000 for that purpose and she claims she still owes that money to him. 

22. It is argued by the husband’s legal representative that her net asset position should not include any liability to Mr G since there is no evidence of a debt to Mr G.  But this is wrong; the wife gave evidence of it.  No objection was taken to it and nor was anything said in closing about her credit, adverse or otherwise.  She was asked if she knew how to contact Mr G but this was taken no further and no submission was made taking up the principle in Jones v Dunkell (1959) 101 CLR 298. That principle is concisely explained by Kirby P (as he then was) in the decision of Ghazal v GIO (NSW) (1992) NSWLR 336 at 343 (Mahoney and Clarke JJA agreed) as follows:

    “The rule in Jones v Dunkel is one of commonsense reasoning.  It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness.  It is important to note that this is a facility.  It is not an obligation in the reasoning of the decision-maker.”

23. Here, the principle could not be applied since the propositions put to the wife fell short of fairly permitting it.  Therefore the wife’s evidence of debt and the obligation to repay is accepted.  For those reasons it is included as a liability in the lists to follow. 

24. In mid-October 2007 the wife’s position of employment was made redundant and she received $22,000 payout which she used to pay debts including credit card debt and living expenses as well as the purchase of some furniture. 

25. She and Mr G separated in February 2008. 

26. She has not been in paid work since last October although she has undertaken some training courses.  For example, in April 2008 she commenced studying commerce business management at Business Enterprise Centre in Perth but her studies were suspended when she fell ill and sought treatment for depression.  She also commenced a TAFE course one night per week studying bookkeeping and she has kept this up.  She has also completed a MYOB short course in early June. 

Current circumstances

1. Recently the wife went to live in Perth.  At the moment she is living in a rented room for which she pays $150 per week; however, she says she feels isolated and she plans to return to New South Wales.  She said she plans to actively look for work.  Her current income is the Newstart Allowance and rental assistance totaling $495 per fortnight.  As well as her expenses she pays around $6 per week child support which is said to be in arrears by about $1,000. 

2. As noted earlier the husband continues to live in the M home with the child.  According to his recent affidavit he receives disability support pension of $437 per fortnight from which there is deducted $80 per fortnight for school fees for the child.  He currently receives child support of $12 per fortnight as already noted.  Apart from that he says he receives some income from dividends from shares in AT Pty Ltd and last year that was $367.  It will be noted that he has funds in the bank and presumably they earn interest although he said nothing of what he earns from that investment.  He also says he does some casual repair work but he does not nominate any figure for his earnings.  The child has recently begun to work part time on some days after school and at weekends and he retains what he earns for himself.  The husband estimates the child’s expenses amount to $338 per week which is a figure in excess of the husband’s weekly income from all sources except the casual repair work. 

Assets and liabilities

1. The figures are agreed [exhibit 13] save for the debt owing to Mr G about which a finding has already been made. 

   Assets
   Wife
   South Africa property   106,500
   L property      81,000
   South African bank account    2,613
   Paladio shares  190
   Kia Motor vehicle   5,000
   jewellery/personal   300
   balance funds South African bank & Easy Street     46,352
   paid legal costs   40,000
      281,955
   Less
   Loan Mr G, L property   40,000          241,955

   Husband
   M property                   830,000
   ANZ account  914
   Easy Street banking   1,038
   C Bank              98,500
   AT Pty Ltd shares   8,450
   Kia Motor vehicle  7,000
   household contents     300
   paid legal costs   42,282          988,484
   Total net [non-superannuation] assets:  1,230,439

   Superannuation
   Husband  81,572  
   Wife  27,135   108,707
   Total net assets – all sources:  1,339,146

2. The $46,352 attributed to the wife reflects the money she received from both the South African bank and Easy Street accounts from which there has been deducted the current balance of her account, the money she paid for repairs to the South African property, her legal costs and the money she put towards the purchase of the L property [since that property is also included as an asset].  The figure is agreed save for the argument about the debt to Mr G which has been resolved. 

3. The C Bank amount attributed to the husband has reflected in it the $64,405 he retained from the Easy Street account. 

Evaluation of contributions

1. The parties’ entitlements may be approached by looking at individual assets or categories of assets – the ‘asset by asset’ approach – or by assessing the totality of the assets to be divided having regard to the whole of their history – the ‘global’ approach [see High Court decision of Norbis v Norbis (1986) FLC 91-712 and the later Full Court decision of Lenehan v Lenehan (1987) FLC 91-814]. In this case the global approach is appropriate and that is the basis on which submissions are put.

2. It will be apparent from what has been said of their financial history that the parties have each made contributions of the kind falling within the description of s 79(4)(a)-(c) over the period of some 13 years or so before their separation in 2005 and over the further period of more than 2 ½ years since that event. 

3. Taking the period to separation first, clearly the husband was in the stronger financial position initially.  He had a relatively substantial equity of around $195,000 in the M property which provided the family with their home over all the years of the marriage.  He worked throughout the period up to separation save for the first 15 months or so and it can be inferred, without having been specifically stated, that his income was directed towards meeting the family living expenses and financial commitments of one kind or another since there is nothing to suggest it was squandered or hidden or somehow it did not find its way into common family purposes.  As well as his role as an income earner he assisted with the care of their son and with responsibilities of the household. 

4. For her part, the wife introduced some assets but of relatively minor value.  She earned income initially by taking in boarders, which was supported by both of them relinquishing the upstairs portion of the house, and she saw to the work entailed in that enterprise as well as doing sewing and dressmaking to earn additional income.  It is not clear how lucrative these efforts were, but the earnings appear to have been relatively modest given the range of weekly figures discussed.  Nonetheless, it was income that was made available to the family for common purposes and supplemented income from the husband’s efforts during these years.  A year after the child started school or thereabouts the wife obtained outside employment.  She changed jobs at one point, but from 1999 until their separation she continued to earn a reasonable income which was contributed to the family’s financial needs or commitments. 

1. Obviously the husband’s total earnings overall exceeded the wife’s.  His earnings from early 1994 plainly would have exceeded what she was able to bring in from using the home for boarders and taking in sewing.  It is also likely that his earnings exceeded her after she obtained employment from 1999, at least if a comparison of their earnings in the 2005 and 2006 financial years is any indicator. 

2. The history demonstrates there were continuing reductions in the mortgage debt from the end of 1992 until it was virtually paid off some 7½ years later in early 2000.  During those years they had government benefits for the first 15 months, earnings from the husband’s employment from early 1994, the income from boarders and sewing until 1999, and the wife’s earnings from employment from 1999.  While the husband’s earnings were greater during those years contributions were also being made by the wife, not only directly financially from her efforts but also as homemaker and parent.  Therefore the husband cannot claim all of the credit for reduction of the mortgage over these years.  Following their son’s birth relatively early in the marriage she contributed in her role as his primary carer and she was primarily responsible throughout for the domestic chores. 

3. The history demonstrates they both contributed, as discussed earlier, to the acquisition of the property in South Africa, to the considerable savings they had accumulated by separation, and to their superannuation entitlements.  As for their superannuation, no background information was provided but reasonable inferences are available; namely, the wife’s entitlement was accumulated from the time she returned to work in 1999 until the redundancy in 2007 well past their separation, and the husband’s entitlement was accumulated from the time he resumed work in 1994 until his position was terminated in 2006 post separation.  For the most part, therefore, it can be said that their entitlements were accumulated during the years of the marriage, noting also the husband’s entitlement was given something of a boost from the amount of $6,000 or thereabouts rolled over from what he received on termination of his employment post separation. 

4. Since the wife’s departure from the home the husband has had the sole use of the M home, albeit it has been shared with the parties’ son, and he has had the major responsibility for the care of their son since that time.  On the other hand, the wife has had the cost of paying for accommodation elsewhere and she contributed in a meaningful way to their son’s financial needs through child support until October last year when her employment ceased. 

5. In my view the fact that causes the overall weight of contributions to shift in the husband’s favour is the home he introduced to the relationship; more particularly, the equity he introduced and the subsequent use made of the home for the family’s benefit.  The Full Court discussed in Pierce and Pierce (1999) FLC 92-844 [Ellis, Baker O’Ryan JJ] disparity of initial contributions. After canvassing earlier decisions on the topic such as in Money and Money (1994) FLC 92-485 [Fogarty J], Bremner and Bremner (1995) FLC 92-560 [Nicholson CJ, Baker and Tolcon JJ] and Way and Way (1996) FLC 92-702 [Barblett DCJ, Finn and Butler JJ], their Honours concluded:

   ‘28.     In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.  In the present case that use was a substantial contribution to the purchase price of the matrimonial home: ….’

6. With due weight given to the husband’s stronger initial position and to the benefit the home provided the family over the years, their contributions are evaluated in the proportions of 60% to the husband and 40% to the wife.  Applied to their total assets of $1,339,146, that entitles the husband to receive assets worth $803,488 and the wife to receive $535,658. 

7. This is far less than the assessment submitted for the husband of 75/25 in his favour, but in my opinion such an outcome would far outstrip the weight of his contributions and minimise those of the wife.  It is also inconsistent with the submission for the wife of 55/45 in his favour but it is also my view that a 10% differential would not give sufficient weight to the husband’s introduction of the equity in the M property which provided their home throughout. 

8. That is not to say their net assets are to be divided in those proportions.  It is necessary to consider any relevant s 75(2) factors. 

Section 75(2) factors

1. The assessment of their contributions means that the husband will retain property worth considerably more than the wife will retain. 

2. He is aged 61 years and the wife 44 years.  Neither is presently in paid employment: the husband was last employed apart from casual repair work in November 2006 and the wife from around a year later in October 2007.  As for their future earning capacity and likely future earnings, each claims to suffer from health problems although neither presented any medical evidence of it nor the likely impact on their future circumstances. 

3. Nonetheless, the husband says he suffers from diabetes, he has problems with his lower back which means he cannot stand for any length of time, and he says he also has problems with his ear.  Probably by reason of his age he will not re-enter the workforce but will continue to draw government benefits.  Since he also does some casual electronic repair work, it is reasonable to conclude that he can continue to supplement what he is paid by the government with income from this source. Whatever the figures, his total income is likely to be relatively modest. 

4. The wife says she suffers from depression but it is being treated and she intends to try and obtain employment in the future.  She has undertaken courses with this aim in mind.  Her future, therefore, is more likely to include paid work and, being considerably younger than the husband, it is reasonable to see her as having a number of working years ahead of her.  What her earnings are likely to be is difficult to predict at this stage.  But she has been able to earn a reasonable income in the past and she should be seen as likely to re-position herself somewhere in that vicinity when she does return to paid work. 

5. From her earnings, there can be no doubt, she will be assessed to pay child support and therefore she will make a meaningful financial contribution to the child’s support while ever he remains dependent.  He will turn 15 years of age in August and whether his intentions, ambitions or abilities mean he will continue with his education until he attains his majority or he will pursue some other path beforehand was not explored.  Therefore it is difficult to be sure what future period is to be assessed.  That said, absent exploration or submission about it, it is reasonable to conclude his current situation is likely to continue for the next three years or so when he will turn 18.  In the meantime, is to be recognised that whatever the source of the problems in his relationship with his mother, his time in her care is highly likely to be minimal and his father will have virtually sole responsibility for his supervision and care. 

6. The submissions for the husband urged a 10% adjustment in his favour from a 75/25 contributions base whereas those for the wife conceded a 5% adjustment to the husband although that was on top of a 55/45 contributions assessment.  The concession in the wife’s case that these factors favour the husband is correct as appropriately recognising his stronger asset position arising from contributions, his lesser future earnings, and his greater responsibility for the child who will turn 15 years of age shortly. 

7. In my assessment, the balance of these matters justifies a further adjustment of 2.5% in the husband’s favour which would give him an additional $33,478.  It is acknowledged that this is less than the 5% proposed on her behalf but, as already noted, that submission was based on a contribution assessment of 45% to the wife rather than the 40% determined. 

Conclusion

1. That brings the wife’s entitlement to 37.5% of the assets or $502,180 and the husband’s to 62.5% or $836,966.  This means the husband would receive $334,786 more than the wife, which is appropriate to the history and their current and likely future circumstances. 

2. Assuming the wife retains the whole of the South African property which she is willing to take, she would retain the assets listed earlier:

South African property   106,500

L property   81,000

South African bank account    2,613

Paladio shares  190

Kia Motor vehicle   5,000

jewellery/personal   300

balance funds from S.A. Bank & Easy Street              46,352

paid legal costs        40,000

281,955

Add superannuation entitlement   27,135

309,090

Less loan Mr G       40,000

Total:   269,090

1. To receive her entitlement, therefore, the husband will have to pay her an amount equivalent to $502,180 less $269,090 which is $233,090 (say, $233,000).  Some of the items she is to retain have already been spent and she does have further legal costs to pay, but she will have what she can obtain from the sale of the South African property, the land at L, chattels and a cash sum for her future security. 

2. On the other hand the husband will retain these assets:

M property                   830,000

ANZ account  914

Easy Street banking   1,038

C Bank account   98,500

AT Pty Ltd shares   8,450

Kia Motor vehicle  7,000

household contents   300

paid legal costs     42,282

Total:   988,484

Add superannuation entitlement   81,572

Total:  1,070,056
Less cash payment to the wife:   233,000
Retained by husband according to entitlement:        837,056

1. This also includes some funds already spent and he also has some legal costs to pay, but he will retain the major asset being the M home and he has no other debt apart from the obligation to pay the wife her entitlement.  For that he has some funds in savings and a modest parcel of shares but obviously he will have to raise the balance elsewhere.  Apart from the obvious observation that he has considerable equity in the home, he says he will approach his adult children if, contrary to his application, he is ordered to pay the wife any money and he seems confident that will be forthcoming.  He should have the chance to retain the home, but if the money is not paid to the wife within a reasonable time it will have to be sold and her entitlement paid from the sale proceeds.  From the balance he will need to find less expensive housing for himself and the child.  Absent submissions about what would be a reasonable time for payment, the wife’s proposal of 30 days is adopted. 

2. Orders as discussed will bring about a just and equitable division of property in my view. 

3. It will be noted that in providing for the sale of the M home in default of payment within the time stipulated or further time agreed, the orders I have drafted provide for the wife to receive from the net proceeds the amount calculated here.  That is based on the agreed value of the home at $830,000.  Of course it is recognised that if it goes to sale it will probably sell for more or less and there would be costs involved in that exercise as well.  Therefore before the orders issue in sealed form the legal representatives will have the opportunity to submit whether they wish the orders to reflect proportionate entitlements rather than payment of a sum specific in the event matters progress to the default stage. 

   Orders sought by the wife

   1.That the parties forthwith do all acts and things and execute all documents necessary to sell the property in South Africa situate at […] (“the South African property”) at a reserve price of R800,000 or such other price as they may agree and on such terms and with an agent agreed upon by the parties within 14 days of the date of this order and failing agreement then with such agent as the President of the South African equivalent of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.

   2.That the proceeds of sale of the home pursuant to order 2 shall be distributed in the following order and priority:

   i.         In payment of agents commission and the legal costs of sale.

   ii.        In payment of 60% of the balance to the husband.

   iii.      In payment of the balance to the wife.

   3.That within 30 days of the date of these orders the husband pay to the wife the sum of $366,046 (“the capital sum”).

   4.That in default of payment of the capital sum by the husband to the wife that the husband forthwith upon default do all acts and things and execute all documents necessary to sell the home situate at [M] (“the [M] home”) on such terms and with an agent agreed upon by the parties within 14 days of the date of this order and failing agreement then with such agent as the President of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.

   5.That the proceeds of sale of the [M] home pursuant to order 4 shall be distributed in the following order and priority:

   i.         In payment of agents commission and the legal costs of sale.

   ii.        In payment of 60% of the balance to the husband.

   iii.      In payment of the balance to the wife.

   7.Declare that the parties otherwise retain the items of property set fourth in the Schedule hereto.

   8.That in the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

   9.That the parties have liberty to restore on 7 days notice in respect of the implementation of these orders.

   10.That the husband pay the wife’s costs of and incidental to these proceedings.

Orders sought by husband [exhibit 14]

1.That the husband's interest in the property known at […], South Africa be transferred to the wife within 28 days of the date of this order;

That pursuant to section 79 of the FLA 1975

2.Declaration pursuant to Section 78 Family Law Act 1975 that, subject to the rights of any third parties in the Orders herein, each party be declared the sole owner of any real of personal property standing in that parties respective power, possession or control both in Australia and in South Africa (in so far as already dealt with in order 1);

3.That the parties do all things, sign all documents and give all consent necessary to give full force and effect to these orders;

4.That in the event that either party refuses to or neglects to sign any document or do anything required pursuant to these orders, then the Registrar of the Family Court shall have the power pursuant to Section 106A of the Family Law Act to sign such documents or do such things on behalf of either party to these orders; and

5.That the wife pays the husband's costs of and incidental to these proceedings.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: