Connors and Saba

FAMILY COURT OF AUSTRALIA

CONNORS & SABA

[2009] FamCA 680

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

Norbis v Norbis (1986) FLC 91-712

APPLICANT:

Ms Connors

RESPONDENT:

Mr Saba

FILE NUMBER:

SYF

3695

2005

DATE DELIVERED:

31 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

22 April & 14 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kasep

SOLICITOR FOR THE APPLICANT:

Sawaya Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

On or before one (1) month from the date of these orders the parties are to do all things and sign all documents necessary to sell the property at R in the State of New South Wales and the following is to apply unless agreed to the contrary:
(i)       the sale is to be by way of public auction as soon as practicable;
(ii)the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;
(iii)the parties are to pay equally all costs necessary for the sale of the property;
(iv)the husband is to pay all council and water rates and insurance while ever he remains in occupation;
(v)each party is entitled to bid at auction;
(vi)     on completion of the sale the proceeds of sale are to be paid as follows:
(a)agents commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser;
(b)      50% to the wife and 50% to the husband;
(c)from the 50% received by the wife she is to pay contemporaneously to the husband the sum of $85,500.
On or before one (1) month from the date of these orders the wife is to sign all documents and do all things necessary to transfer to the husband her interest in the property known as C property in the State of New South Wales and contemporaneously with the transfer the husband is to do all things necessary to discharge the mortgage in favour of the Westpac Banking Corporation secured on the title of the property.
The husband is to be solely responsible for payment of the sum of $82,450 to the Australian Taxation Office, being capital gains tax payable in respect of the sale of the property in his name located at G in the State of New South Wales and to pay to the Australian Taxation Office any interest and/or penalties referable to the amendment of his relevant taxation return declaring the sale of the property.
Unless specified in these orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these orders; more particularly –
(a)the wife is entitled to retain absolutely any motor vehicle, jewellery, shares, chattels, and cash at bank in accounts in her name.
(b)the husband is entitled to retain absolutely all realty registered solely in his name, any motor vehicle, shares, chattels, cash at bank in accounts in his name and any superannuation to which he is entitled
and to the extent it may be necessary for the other party is to sign any documents or do anything necessary to give the other title to that property each is to sign such document and do such thing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3695 of 2005

MS CONNORS

Applicant

And

MR SABA

Respondent

REASONS FOR JUDGMENT

Proceedings

The parties competing claims for property settlement are to be determined. Since the proceedings were instituted both parties have amended the orders initially sought. The wife seeks a vast array of orders by an amended application filed in Court on 22 April 2009 and they are set out in a Schedule to these Reasons. The outcome now sought by the husband is to be found in Minute or Orders dated 21 April 2009 [exhibit 8] and the detail is also set out in the later Schedule.
At the end of the day, there was only one disagreement about the composition of their assets and liabilities and, as argued by their counsel in closing, there is relatively little between them on what is contended to be a just division of their property.

Approach

The process of determining their entitlements is well understood and not the subject of dispute. It is governed by s 79 of the Family Law Act 1975 which prohibits the Court making an order altering the interests of parties in property unless it is satisfied in all the circumstances that it is just and equitable to do so. That involves a series of sequential steps: (i) the identification of their property and its’ value; (ii) an evaluation of their contributions; (iii) consideration of what adjustment if any needs to be made to that assessment by reason of any relevant matters in s 75(2); and finally (iv) consideration whether the outcome will deliver a just and equitable outcome.
But before coming to those steps the more central features of their financial history is to be recorded and material differences in their accounts about what occurred resolved.

Credit

As for the fact finding task, it is the submission of counsel for the husband that his evidence should be accepted over the wife’s version of events wherever there is conflict. Essentially it is argued that the wife [and her mother] were evasive in giving their evidence, they demonstrated a ‘deep and abiding ill feeling’ towards the husband and allowed their ‘passions’ to colour their account of the history, and there were aspects of the wife’s evidence shown to have been inaccurate or misleading – for example, she wrongly denied getting legal advice about getting the husband out of the business, she wrongly denied keeping records of money paid to the mother for the business until confronted with a document, and in paragraph 31 of her recent affidavit she referred to the husband ‘swindling’ the business, a rather substantial allegation, and yet when challenged about it the wife conceded in cross-examination that it was not part of her case that the husband had acted inappropriately with business funds. The topic of credit was not similarly addressed by counsel for the wife.
For my part, the argument to the effect that the wife’s objectivity has been blunted to an extent. It seems plain enough that she holds still strong views to the effect that the actions of the husband in establishing separate bank accounts for the operation of their business operated to exclude her. Certainly he did establish a separate account, but on his case it was in response to her taking funds required to conduct the business, which she did without informing him. Having said that, there is relatively little to attract a credit finding at the end of the day and any issues necessary to the determination can be considered individually having regard to the evidence on the topic and any available documents. To the extent of any shortcomings there, reliance will be placed on evidence given by the husband.
Such findings as are necessary will be made in what follows; otherwise, statements of fact are to be construed as findings.

Material facts

The husband [48 – born 1960] and the wife [41 – born 1968] married in February 1996 at which point they began living together. They have three children: J, now aged 11, born in June 1998; M, now aged 9, born in September 1999; and D, now aged 7, born in November 2001. The wife maintains they separated in October 2004 but remained living together in the family home at R until December. The husband identifies separation as having occurred on 12 December 2004 when he left the home. The difference is immaterial. On his departure he went to live at C in an investment property they owned while the wife and children remained living at the R home. They divorced in September 2006.
In December 1995, two months before their marriage, the parties purchased the R home in their joint names for $475,000. There is no common ground about the source of funds. It is agreed they borrowed $160,000 from the Westpac Bank which left $315,000 to find in addition to stamp duty and conveyancing costs. The wife says they each contributed $100,000 from their savings, she contributed a further $100,000 which she received from her father, and a further $15,000 came from her mother although she conceded this last figure may have been the value of the furniture her mother gave them as a wedding gift. The husband says he contributed $160,000 [$40,000 from his savings and $120,000 from the proceeds of sale of a property he owned at S], the wife contributed $100,000 from her savings and the wife’s father gave them a gift of $100,000.
Excluding the $15,000 which was probably the value of furniture given to the by the wife’s mother, the wife’s figures fall short of the amount required to complete the purchase and therefore it is probable the husband did contribute what he said he did. It is accepted, therefore, that he contributed $160,000 towards the purchase price and the costs of purchase. As for the gift of $100,000 from the wife’s father, in my judgment this is to be regarded as a payment for the benefit of the wife. As was said in Kessey and Kessey (1994) 92-495 at p 81,150, where there is no evidence of any intention by a parent/donor as to whether they wished to benefit only their child or also the spouse of the child, the fact of the relationship will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent/donor. In other words, the advance will be taken as a contribution by that child unless there is evidence establishing it was not the intention of the parent to benefit only their child. There is no evidence it was not the intention of the wife’s father to benefit only her and there is nothing else operates to settle the issue the husband’s way. It is accepted, therefore, that the $100,000 was a contribution by the wife.
Accordingly, apart from the money they borrowed jointly from the bank, the wife contributed $200,000 to the purchase of the R property and the husband contributed $160,000. Other financial contributions were made to the home later and I shall come to them in due course.
When they married the husband was working in sales and he remained working there until late 2000 when the parties went into a shop business in partnership. He worked full time throughout the marriage.
Apart from his interest in the R home, the husband had the following assets initially:
(i)1/3 interest in property at N [he put its value at $80,000 but the wife does not accept it];
(ii)1/2 interest in property at U [he says it was worth $100,000 but again the wife disputes it];
(iii)a property at G;
(iv)savings between $50,000 and $60,000 [this is disputed];
(v) a Nissan motor vehicle; and
(vi) superannuation entitlement with P Super worth about $20,000.
No independent evidence is available to establish the value of the real estate he owned or the extent of his savings. What can be said is that he retains his interest in the property at N to this day [it has an agreed value of $118,333], he retains his interest in the property at U [it has an agreed value of $160,000] and in October 2003 he sold the G property for $385,000.
For her part, the wife was employed by a business owned by her father. This ceased prior to the birth of their first child and she may or may not have returned to work there at some later point. What is certain is that as time progressed her participation in paid work was interrupted by the birth of the children and her responsibility for their care. She set out her work history in her affidavit, including her work part time at the business after it was established at the end of 2000, and while there is dispute about it, the issue is of no real moment since it can be accepted that in as much as she was not in paid employment or working at the business throughout the marriage she had primary responsibility for the running of the family home and the care and supervision of the children after their births.
Apart from her interest in R home, at the time of marriage she had the following assets:
(i) Ford Capri motor vehicle;
(ii) some savings.
It is accepted that the wife’s mother gave them furniture worth about $15,000 as a wedding gift, now in the possession of the wife, and her parents paid most of the costs of the wedding.
It is the husband’s case that his parents gave them $40,000 around the time of their marriage and this was paid into the mortgage over the R property. Despite the wife’s denial, this can be accepted. It is also his case that in 1997 or early 1998 his parents gave them a further gift of $10,000 which was also paid into the mortgage. Again this is accepted in the absence of any independent evidence to the contrary.
In December 1998 the wife’s mother advanced the sum of $200,000 [exhibit 14]. There is a dispute about whether it was a gift to the parties jointly by reason of the assistance and support given to her over a long period of time during her divorce and property proceedings [the husband’s case] or to the wife alone [the wife, supported by her mother’s evidence]. They used $135,000 to discharge the mortgage on the R property and the remaining $65,000 was deposited to their bank account which the wife says was to be for the children’s education.
The issue of gift to one or both again falls to be decided by the statement of principle to be found in Kessey (supra) already set out. The gravamen of the husband’s argument is that his efforts to assist his mother-in-law in her divorce proceedings underpinned her decision to gift the money to both of them. But while the issue was agitated in cross-examination, there was nothing cogent or persuasive to see it his way. The evidence of the wife’s mother is that she intended only to benefit her daughter and around that time she gave similar gifts to her other children. That was not undermined. It is accepted, therefore, that it was a gift intended to benefit her daughter. The wife’s application of those funds, therefore, is to be seen for present purposes as a contribution by her.
In December 2000 the parties went into business in partnership operating a shop business called the GP Business by an arrangement with the wife’s mother to whom they paid $120,000 or thereabouts. The husband says the amount paid was ‘nearly equal to the value of the stock and machinery’ and only a small amount was for goodwill. There are differences about whether there was a goodwill component but it is likely in the circumstances described there was not. Of the amount paid, $65,000 came from their savings and the remainder was paid in instalments although the wife’s mother complains of arrears for a time. The business was conducted from premises at V owned by the wife’s mother. The parties commenced operation in November or December 2000
The business premises had formal Council approval for the operation of a wholesale business only, although it had been operating as a retail outlet for many years. Towards the end of 2000 the local Council required a development application to secure approval of use for retail purposes and, as correspondence demonstrates, that was subsequently granted in March 2001, subject to certain conditions imposed about various works being undertaken amongst other things.
Plainly the business was a profitable enterprise. For example, in 2003 the parties purchased an investment property at C for $530,000. They borrowed $330,000 from the Westpac Bank and the remaining $220,000 came from joint funds which they had accumulated by then. The property was rented and the rental paid directly towards the mortgage instalments.
As with many family arrangements, neither the initial agreement nor later developments became the subject of any formal documentation. So when disputes arise, as they have here, there is little to help establish what happened other than the say so of those involved. There is conflict in the evidence here about what occurred during the four years leading up to their separation at the end of 2004 and further conflict about event in the period to follow until the business was finally closed in August 2006.
There was never a formal lease entered between Mrs Connors and the parties although there were discussions about it. Rent of $4,000 per month was agreed. But the evidence supports the finding that until February 2004 only two payments were made - in June and October 2003 - and rent was then paid from February 2004. Annexed to the affidavit of Mrs Connors is a letter from her accountant setting out the rent received and no issue is taken with the figures. But the underlying circumstances are controversial.
Mrs Connors says no rent was initially forthcoming and the instalments for stock, plant and equipment fell into arrears. This led to arguments between her and the husband as she pressed him for payment. At a time when they were in arrears of about $40,000 for the stock, she agreed to the husband’s proposal to do the work required by the Council for rezoning approval and to set that off against the money owing for the stock. In 2002 she maintains she chased him for the rent regularly and demanded payment and ultimately he made two payments in 2003. After she confronted him in early 2004 about the rent, the $4,000 per month was paid although consistently late. She says she had these discussions about rent with the husband and not her daughter since she did not want to cause trouble in the marriage.
On the other hand, the husband says that for the first two years they spent a large amount of money on improving the business in lieu of paying rent and after that they commenced paying $4,000 per month. He made the arrangements necessary for the rezoning approval and to comply with the Council’s conditions he arranged and paid for the work undertaken at a cost of between $70,000 and $100,000.
The husband identifies the work done to satisfy the conditions imposed by the Council for development approval but that is also controversial. The wife contends that some of the work he nominates was either not done or had already been done by her mother before they took over the business.
Indeed Mrs Connors has invoices which she maintains relates to work she had done during 2000 and they pre-date the parties taking it over. The invoices do not identify the work with much particularity but it is clear enough work was done and the cost to her was relatively substantial. It is accepted therefore that she did bear the cost of certain improvements before they took over the business.
Nonetheless, it is also clear from the correspondence from the Council that further work was required to be undertaken to satisfy the conditions imposed for development approval and it is accepted the husband organised and the parties paid for that work. There were 15 conditions in all, set out in the Council document dated 21 March 2001 [see exhibit 15] and relayed to the husband in a letter dated 5 April 2001 [annexure C to his affidavit]. The work required was relatively substantial and includes the construction of car parking and access roads amongst other things. It is accepted the husband took the running with the Council in doing what was necessary to obtain development approval, it is also accepted he organised for the work to be done to satisfy the conditions of approval, and it is also accepted the parties paid the costs involved to be in lieu of rent.
At a rate of $4,000 per month, the parties would have been required to pay around $150,000 between December 2000 and February 2004 at which point payments became regular. What they did pay was short of that - even accepting they paid for improvements between $70,000 and $100,000 and adding the two payments in 2003 according to the accountant’s letter. To that extent, therefore, they benefited from the arrangement with the wife’s mother and, again, this has to be seen as a benefit contributed by or on behalf of the wife.

In January 2004 there was further discussion about the arrangement. According to the husband, Mrs Connors approached him about formalising the rent payable, to which he agreed, but he told her they would need a formal lease. On his account of it she told him the terms would be for 5 years with an option to renew for a further 5 years, rent of $4,000 per month including GST, and the house she occupied would be excluded as would be an area her son was using for storage. He agreed to these terms but she saw no need for a formal lease - ‘we are family’. He says he confirmed the terms discussed in a letter to her and he annexes to his affidavit a copy of the letter dated 2 February 2004. It could not be said to have been self-serving document manufactured to suit his purposes here because the proposition was not put to him. It is accepted therefore that the discussion he recounted did occur. Whatever the case, it was to no avail since the parties occupation of the premises was later terminated by Mrs Connors served and acting upon a Notice to Quit and it could not be said it was not within her legal right to do so.
As mentioned earlier, in October 2003 the husband sold the property he owned at G prior to their marriage for $385,000. As exhibit 6 demonstrates he received $342,837 on settlement and the balance of the deposit after payment of commission was a further $32,530 – a total of $375,367. The money was deposited to accounts they operated with Westpac at the time. As will be noted later, the husband has not yet paid capital gains tax and there is an unresolved question about the quantum of interest and penalties yet to be assessed by the Australian Taxation Office.
In December 2004 the husband left the R home and went to live at the C property where he remained for the next year.
Around the time of separation in addition to the home at R and the investment property at C, they had the business, the sale proceeds of his property at G, and cash investments of between $600,000 and $650,000 in Westpac accounts. They also had a tax liability which was subsequently paid in an amount of about $300,000 from available funds.
They continued to operate the business after separation. The husband continued to work full time and the wife participated part time around her responsibilities for the children, including at times when the children were in the husband’s care. They each drew $1,000 per week for their living expenses. But things did not go smoothly and it was not long before disputes developed.
Shortly after separation, in January 2005, the RTA commenced a compulsory acquisition of part of the R property. The parties lodged an objection and the matter went to the Land and Environment Court. They received a partial payment of $298,000 in July 2005 and in November road widening commenced. At that time the wife left the home and moved with the children to live with her mother. Her reasons relate to noise and safety issues for the children, which the husband dismisses, and she says she intended to return at a later time. However, after she left the husband moved back in and the C property was again rented. The road works were completed in late 2006.
On 31 March 2007 the compulsory acquisition proceedings were finalised, they were awarded $633,691 and the money owing to them paid into the trust account of Grech Partners. This money has been used for various purposes including equal distributions to the parties by way of partial property settlement and since the hearing concluded they have agreed to distribute equally between them the remaining balance to each receive $85,477.
It is the husband’s case that he was solely responsible for much of the work related to the compulsory acquisition proceedings, including conferences with lawyers and others and discussions with neighbours and, while the wife puts this in contest, his evidence is accepted as the more probable.
As for the business, relations between the parties were on a downward spiral. On 9 May 2005 the husband attended the business to find the gates shut and in attendance were members of the wife’s family who conducted a stock take behind closed gates. The husband resumed operations a couple of days later. Around this time the wife’s mother purportedly wrote to the husband – a copy of the undated letter is annexed to his affidavit – foreshadowing the stock take and also the dissolution of the business ‘as the marriage partnership is well and truly over’. Amongst other things written on the letter is the note ‘no marriage no business’. The husband sheets the letter home to the wife who denies she wrote it. Whatever the case, there could be no doubt that the sentiment expressed in the notation was the wife’s view and nor could it be said that sentiment was immaterial to her mother’s view or actions she took to terminate the parties occupation of the premises to conduct the business. As I find, the wife’s attitude to the husband was very probably instrumental in the steps her mother later took to bring the business to an end.
The march of events during 2005 is reflected to some extent in the mutual allegations of wrongdoing aired in correspondence exchanged between their solicitors [annexed to husband’s affidavit]. Amongst other things, the husband sought undertakings from the wife not to withdraw funds from bank accounts without his consent and that she not exclude him from the premises in the future and he asked to be told what she had done with $45,000 she withdrew from their joint business account. Ultimately he was advised the $45,000 had been placed in a fixed deposit accompanied by the allegation that the husband had neglected the running of the business and customers were being lost. It was later in 2005 that the husband established a separate account for the business operations, a step he maintains he took to stop the wife misusing funds necessary to its operation although this was to have a ripple effect and it is plain from the wife’s evidence at the hearing that she still sees this as excluding her from the business. To the extent a finding on the issue may be material, the husband’s explanation for establishing a separate account is accepted and, more to the point, it was not contended by the wife and nor was there any evidence to establish that the husband misused any of the funds from the business by doing so or in any other way. In any event, disputes about access to funds invested and the operation of the business continued into 2006.
In March 2006 the husband observed a bank statement in the wife’s car during a contact changeover with a credit balance in excess of $346,000, saying this was the first time he became aware of the existence of this account. On 20 April 2006 he filed an application seeking to restrain the wife from dealing with monies in various bank accounts and on 3 May 2006 orders were made by consent [relevantly] requiring the wife to transfer $250,000 from the Westpac account and redeposit same into fixed term deposit; requiring the husband to pay to the wife $1,000 per week while the business operates from the premises at V; entitling the wife to withdraw $1,000 per week from a particular bank account while there is no current child support assessment; and providing for partial property distribution of $50,000 to each.
In the meantime, on 21 April 2006 the wife’s mother served the parties with a Notice to Quit the business premises and in early May there were proceedings about it instituted in the Supreme Court. The wife did not defend her mother’s claim. There were further appearances in this Court after those proceedings were transferred but, relevantly for present purposes, the husband’s application to restrain the wife’s mother from enforcing or proceeding with the Notice to Quit was unsuccessful and orders were made by Loughnan JR permitting enforcement.
While all this was being agitated, the husband offered to pay the wife $200,000 for the business or to transfer his share to the wife for the same amount. His evidence is that the wife replied: “My Mum will take it for nothing anyway so why should I pay you? My Mum will work it out with me later". She denies it and contends the business was worth nothing without the premises and without a lease there was no business to transfer.
The husband vacated the V premises in August 2006. The wife’s mother paid to him the sum of $65,000 for remaining stock. The wife did not receive a share of this. Mrs Connors is now operating a business from the premises but nothing arising from the evidence establishes that the wife has any interest in it.
Further orders were made on 6 October 2006 by consent providing for payment to each by way of partial property settlement the sum of $125,000 on account of outstanding taxation liability and a further $25,000 towards legal fees.
On 3 April 2006 final orders were made by consent about the children’s arrangements. They provide for the children to live with their mother and spend time with their father each alternate weekend and each Wednesday evening as well as part of their school holidays and on special occasions. There has been no child support assessment to this point; their joint capital has been the source of meeting the children’s needs to the extent they have been paid.
As for their current circumstances, the husband has not been in paid employment since the business ceased operation but he declares an intention to go into business or obtain work in the future. He has drawn on funds he has had available for his living expenses. Nor has the wife been in employment – the husband’s contention that she has been working for her father is unsupported by anything else.

Assets and liabilities

There is no contest about the parties’ assets and liabilities save for the treatment of foreshadowed debt related the unpaid capital gains tax. Nonetheless there should be some remarks about the figures adopted.
The husband has a 2006 Mercedes which is estimated to be worth $90,000. He also has a debt to GE Finance for the vehicle which is said to be $111,000. Obviously their inclusion would result in a reduction of net assets in the husband’s hands of over $20,000. But in my view this would be unfair to the wife in circumstances where it has been his decision to enter into the arrangement and the debt is likely to be paid out in instalments rather than discharged in a lump sum. So despite there being no dissent about the inclusion of these figures, the fairer approach is to regard the value of the vehicle as being offset by the debt related to it and exclude both from the lists to follow.
The submission for the husband is that consistent with authority paid legal fees should be included and nor was there any contest about this. Since neither party has been in paid work since the business ended and the source of funds to pay legal fees has been funds accumulated during the marriage from one source or another, I agree. But I have included for the wife paid legal costs of $185,241 rather than the sum of $205,605 referred to by Mr Sansom in his closing submissions since the latter figures are costs she has incurred and the former is the total of costs paid and money held by her solicitors in their trust account [that is, paid $106,635, held in trust $78,606].
It should also be said that exhibit 5 is agreed to represent the balance of the bank accounts in the wife’s name. In closing address Mr Sansom gave the figure of $726,857 for their total, but in fact that is the total of earlier balances as set out in his case outline document and the total of the balances set out in exhibit 5 is the figure adopted below.
Superannuation entitlements have been included with assets given the small sums involved.
I come now to the outstanding capital gains tax resulting from the sale of the G property in 2003. The evidence of Mr K, the husband’s accountant, is that the sale was not included in the husband’s relevant return because the husband had overlooked informing him about it. The capital gain is $170,000. The amended return had not been lodged at the time of hearing. The estimate made by Mr K of the tax payable is $98,844 but as $16,394 had been paid the debt would reduce to $82,450. Apart from that, Mr K points out that interest will be payable - the prescribed rate is currently 14% - and there will almost certainly be penalties imposed for lodgement of an incorrect return, which can vary but can be as high as 100%. Obviously the precise amount payable will not be known until the amended return is lodged and assessment received. The husband has further tax liability relating to the business partnership but Mr K was unable to say what amount is outstanding.
There were submissions for the wife about the amount that would be payable, particularly by way of penalties, but the best evidence available is to the effect that there is a range and nothing persuades me to accept the proposition that on the balance of probabilities any specific amount could confidently be attributed to penalties yet to be levied. While the capital gains tax can be included as a liability of the husband’s since it has been calculated, in my view it will be better to provide for payment of penalties and interest separately in the orders and exclude them from the calculation of the parties’ net assets.
That leaves the question of who should pay them. Obviously it is the wife’s case that the responsibility should be sheeted home to the husband since it was his property and his tax return which he failed to complete accurately. I see the issue as one to be decided according to the discussion in Kowaliw (1981) FLC 91-092, subsequently approved by the Full Court in many cases where it has been given the status of a guideline thus requiring reasons for departure. The passage to follow is at 76,643-76,644 in Kowaliw:
"Marriage is for most couples an economic partnership. Married couples live together and work together with the ultimate object of purchasing a home, paying it off, acquiring other assets with the overall object of attaining a higher standard of living. The reported decisions in respect of applications for settlement of property under sec.79 of the Act are unanimous that both parties should share the economic fruits of a marriage, having regard to the provisions of sec. 79(4) and sec. 75(2), although not necessarily equally.
Is not, however, the converse equally sustainable? In other words, should not financial losses incurred by parties to a marriage or either of them, whether incurred jointly or severally, be shared by them in the same manner as the financial gains?
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec.79."
It could not be said that this issue fits a ‘course of conduct’ as per paragraph (a) above. It could only come within paragraph (b); namely, the husband acted ‘recklessly, negligently or wantonly’ with assets thereby causing their reduction in value. The debt relates to property the husband introduced to the marriage which was sold and it was only his taxation return that had to be completed accurately and was not. The question is whether his failure to do so comes within this description. Another way of putting it is whether it would constitute an injustice to the husband to have him bear the financial cost of not having completed an accurate tax return at the time and therefore depart from the proposition that economic losses as well as economic gains incurred in the course of marriage should as a general rule be shared.
In the final analysis I have concluded the husband should be solely responsible for the interest and penalties to be assessed in due course. As a businessman it must be a form of negligence for him not to have included the sale in his tax return for the relevant year and, that being so, not to have gone about having the return amended and lodged for assessment as expeditiously as possible – which frankly seems not to have been done. Certainly there was nothing to suggest the wife had any role in the lodgement of his return or that she had any reason to think debt would have been accumulating by reason of an inaccurate return. In other words, I see it as constituting an injustice to the wife to have her bear a share of the interest and penalties when it could reasonably be expected the husband would have dealt with the situation responsibly.
Accordingly, the capital gains tax calculated by the accountant will be included in the calculation of their net assets here, but the husband will be left to pay from his entitlement interest and penalties as assessed. It follows that the question of interest and penalties will have no bearing on the calculation of their respective contributions to the remaining net assets.

Assets

Joint
R property  1,700,000
C propert   520,000
Less: Mortgage   180,000
814        180,814         339,186

Husband
1/3 interest N property           118,333
Less: Mortgage     7,382         110,951
Half interest U property   160,000
Funds distributed - Grech Partners                 85,477
1990 Nissan motor vehicle  7,000
NRMA shares  4,861
Furniture and furnishings  5,000
Paid legal fees   119,263
Superannuation - P Super   20,000
Sub-total:   512,552
Less capital gains tax payable   82,450         430,102
Wife
Funds distributed from Grech Partners           85,477
2003 Saab motor vehicle   24,000
1996 Ford Taurus  800
Jewellery   10,000
Bank accounts [per exhibit 5]
account # 18…  nil
bank account # 27…              380
bank account # 56…              59,190
bank account # 16…                1,096
bank account # 22…                 nil
bank account # 21…                1,010
bank account # 24…            561,489             623,165
NIB shares       1,424
Furniture and furnishings       10,000
Paid legal fees   185,241        940,487
Total net assets:  3,409,395
Evaluation of contributions

Against that background the parties’ contributions are to be assessed. That can be undertaken by a global approach or an asset-by-asset approach Norbis v Norbis (1986) FLC 91-712, but both counsel made their submissions on the basis of the former and there is no good reason to abandon that for the latter.
The parties lived together for some 8 ½ years during which three children were born and it is now 4 ½ years since their separation. In all that time they each made contributions of the kind falling within paragraphs (a) to (c) of s 79(4). Expressed in a global way, they each either worked throughout the whole of the time before their separation, either in paid employment or in the business, or, to the extent not so occupied, they were involved with the running of the home and with the day to day care and supervision of the children. There is nothing in the evidence to permit any view other than they each worked hard in those years towards improving their lot as a family. In the years since their separation the wife has had the children in her care for much greater time and the husband has had less time with them - since the consent orders according to the arrangements agreed in 2006. However, from the time of separation until August 2006 the husband was operating the business for their joint benefit. Since the demise of the business neither has been in employment or business to generate an income and each has relied on capital to live. There is nothing in the way they performed these roles or dealt with funds available to warrant seeing their contributions on those fronts as other than approximating equality.

The husband did introduce assets of greater value to the marriage. While the money the wife put towards the purchase of the R home initially exceeded what the husband contributed, he introduced a further $50,000 received from his parents shortly afterwards and that effectively levelled their direct financial contribution to the family home. Later, however, the wife introduced $200,000, of which $135,000 was put towards the mortgage debt and the remainder invested, which takes her ahead in direct financial contributions to a rather significant degree. However, on the other side of the scales, the husband introduced three properties to the marriage – now reflected in the assets available in one form or another – outstripping the weight of the wife’s direct financial contributions of the kind so far mentioned. In particular, he retains the N and U properties which between them add over $270,000 to the net assets and, within their remaining cash holdings or in what has already been distributed there is the $375,000 he received from the sale of the property he owned at G, reduced by the capital gains tax liability yet to be paid. These are significant figures which put him ahead on contributions of this kind overall.
The wife can be credited with the benefit of shortfall in rent for the business premises which may have allowed the parties to accumulate more capital while they ran the business than would otherwise have been the case. However, a counterweight to this is the fact that she has to be seen as instrumental in her mother’s decision to terminate the occupation of the V premises and therefore bring to an end the continued operation of a successful business that had served the family well for quite a number of years. That is not to say Mrs Connors was not within her legal rights – clearly she was – it is to recognise that the wife was involved in the cessation of the business that had generated considerable funds for the family to that point.
In my judgment the greater contributions by the husband overall, attributable to his greater direct financial contributions, would be recognised by an entitlement within the range of 55% - 60% of their net assets, say 57.5%. In saying that, I am mindful that he will have responsibility for payment of any interest and penalties levied by the Australian Taxation Office for the undeclared sale of the G property.

Section 75(2) factors

The relevant considerations here are few and not in dispute.
It can be said that both parties are in good health and each has a capacity for paid work of some kind or another and both have many years of working life ahead. They each have skills, either from their earlier training and employment or from the experience gained in the operation of the business. There is no reason to think they could not reposition themselves in employment or business for the future. What they are likely to be able to earn is not the subject of evidence but there is no reason to think they would not be self sufficient and no reason to see them as having relevantly disparate earnings.
Significantly, the wife will continue to have the major responsibility for the care and supervision of the children. Given the youngest is just 7 years of age, there are a good many years of child rearing ahead yet. This is a factor recognised in the husband’s case as justifying an adjustment of the contribution assessment in her favour.
To this point child support has come from their capital until relatively recently and no child support assessment has yet issued. But there is no reason to see the husband as not contributing an appropriate level of child support in the future – either by reason of an assessment or determination within the workings of the child support system or as parents they might agree.
Neither has the obligation to support any person other than the children.
Counsel for both parties submit that an appropriate adjustment to the wife would be in the range of 5% to 10% and I accept that – say 7.5%, which amounts to over $255,000 based on a net asset figure of $3,409,395, a solid recognition of her greater future responsibilities in my opinion.

Just and equitable

This leads to an equal division of the parties’ net assets set out earlier, entitling each to retain assets to the value of $1,704,697 – although it is recognised of course that within that figure there are significant sums representing legal fees they have paid.

Form of orders

It remains to determine the form of orders. More particularly, each asks for a transfer of the R property and they each propose the other take a transfer of the C property or it be sold. The husband’s position, however, is that if R property is not transferred to him he would prefer to take a transfer of C property than it be sold.
I have concluded in the final analysis it would be more equitable for the R property to be sold because, for reasons apparent from the discussion with counsel in closing addresses, I am not satisfied either has established they have the financial wherewithal to pay the other their entitlement in order to retain the home. While both will be free to bid for the property at sale, I can see no good reason to delay bringing their financial relationship to an end post-hearing by extending time now to see if either can come up with funds to purchase the property. Nor, importantly, is there any good reason to distinguish between them in deciding who would be entitled to retain it since both would have meritorious arguments. There will be orders for sale.
About that and other things, the orders proposed by the wife are a plethora of detail which has not been addressed by anybody and I regard the detail as unnecessary in any event. The orders for sale will be broadly expressed and to the extent required there can surely be sensible agreement or, if that fails, there could be orders to bring about implementation.
There is no objection to the husband taking C property and he has asked for a transfer if he is unsuccessful in retaining R property. Orders will be made to provide for that.
Putting aside the sale of the R home, from which they will each receive 50% of the net proceeds, the husband will retain assets to the value of $769,288 [he paying the capital gains tax of $82,450] and the wife will retain assets to the value of $940,107. This is a total between them of $1,709,395. Half of that is $854,597, which means the wife will have to pay to the husband the sum of $85,510 [say, $85,500] to retain the assets she now has. The orders will provide for that to come from her share of the proceeds of sale of the R home. Of course from his share the husband will have to pay whatever interest and penalties attach to the capital gains tax.
Otherwise the orders are relatively straightforward and would seem to require no further explanation.

SCHEDULE OF ORDERS SOUGHT
Orders sought by wife

That forty eight (48) hours prior to any settlement time being booked in between the parties respective legal representatives to comply with Order 2, the husband shall vacate the property situate and known as [R property] in the State of New South Wales (being the whole of the land contained in Folio Identifier […]) (hereinafter referred to as "the [R] property") together with all his items, furniture and rubbish and leave the property in a clean and tidy condition.
That within twenty one (21) days of Orders, the parties shall do all acts and things and sign all documents necessary so as to transfer to the wife free of all encumbrance all his right title and interest in the [R] property.
That simultaneously with order 2 above, the wife shall pay to the husband the sum of six hundred and eighty thousand dollars $680,000.00 ("the funds").
That provided the parties comply with Order 2 and only in the event that the wife does not come up with the funds to pay the husband referred to in Order 3 above, then within the twenty second (22nd) day of Orders and the forty third (43rd) day of Orders, the parties shall do all acts and things and sign all documents necessary so as to transfer to the husband free of all encumbrance all her right title and interest in the [R] property.
That simultaneously with Order 4 above, the husband shall pay to the wife
(a)the sum of one million and twenty thousand dollars ($1,020,000.00); and
(b)the sum of one thousand three hundred and seventy five dollars ($1,375.00) being half share of the valuation report fee of the [R] property.
That in the event that the [R] property is not transferred pursuant to any of the above orders then the [R] property shall be dealt with on the following basis:
(a)That the [R] property be listed for sale on the forty forth (44th) day of the date of these Orders.
(b)That the [R] property be auctioned by way of public auction on the date being four (4) months from the date of these Orders, unless otherwise agreed to in writing by the husband and the wife then the [R] property shall be auctioned by way of a public auction on the date agreed to in writing by the husband and the wife and such date shall not be more than five (5) months from the date of these Orders.
(c)That pending completion of the sale of the [R] property, the husband shall be solely responsibly for and pay as and when they fall due all rates, charges, usage, taxes and insurances with respect to the [R] property failing which any such costs charges or amounts shall be deducted from the husband's share of the proceeds of sale of the [R] property in accordance with Order 7 below.\
(d)That in accordance with Orders 6(a) and 6(b) above, the [R] property be listed with a licensed real estate agent/agency agreed to between the parties and, failing agreement with […] Real Estate by way of an exclusive agency agreement for a maximum of three (3) months at a time and the parties shall forthwith and prior to the forty fifth (45th) day of the date of these Orders do all acts and things and sign all documents necessary to list the [R] property with an agent/agency referred to in this Order.
(e)That the parties agree in writing prior to the forty fifth (45th) day of the date of these Orders to appoint a solicitor to act on behalf of the parties on their sale of the [R] property and, failing agreement between the parties, that Sawaya Solicitors be appointed as the solicitor firm to act on behalf of the parties in relation to the sale of the [R] property with all instructions for the husband in relation to the sale to be through Watts McCray Lawyers Parramatta.
(f)That the parties facilitate inspections of the [R] property by director/s and/or staff of the real estate agency appointed and referred to in Order 6(d) above and also that the parties facilitate inspections of the [R] property by any prospective purchasers at any reasonable hour.
(g)That forty eight (48) hours prior to any settlement time being booked in between the parties legal representative for the sale and any proposed purchaser or proposed purchaser's representative to comply with Order 6, the husband shall vacate the property situate and known as [R property] in the State of New South Wales (being the whole of the land contained in Folio Identifier […]) (hereinafter referred to as "the [R] property") together with all his items, furniture and rubbish and leave the property in a clean and tidy condition.
(h)That any damage or other claim to the property or any inclusions on the property by any purchaser under a Contract for Sale shall be borne by the husband and any such monies shall be deducted from the husband's share of the proceeds of sale of the [R] property in accordance with Order 7 below.
(i)That the parties not be present during any inspections or open homes of the [R] property.
(j)That the husband shall regularly maintain the [R] property in a clean, tidy and respectable state and the husband shall also mow the lawns/grass, cut the edges and maintain the garden of the [R] property failing which a cleaner and/or gardener shall be appointed by the wife and any costs associated with the cleaner and/or gardener shall be deducted from the husband's share of the proceeds of sale of the [R] property in accordance with Order 7 below.
(k)That the reserve price in respect of the sale of the [R] property shall be that amount agreed upon in writing between the husband and the wife at least seven (7) days prior to the scheduled auction date and, in the absence of agreement, the reserve price for the [R] property shall be determined by the President of the Real Estate Institute of New South Wales or his nominee and the parties shall abide by the President or his nominee's determination unless otherwise agreed in writing between the parties.
(l)That in the event and if the [R] property is not successfully auctioned and sold as provided for in the Orders above, then the [R] property shall be resubmitted to auction at intervals of not less than one (1) calendar month apart and not more than two (2) calendar months apart with a reserve price for the [R] property each time to be agreed in writing between the husband and the wife at least seven (7) days prior to the scheduled auction date and, in the absence of agreement, the reserve price for the [R] property shall be determined by the President of the Real Estate Institute of New South Wales or his nominee and the parties shall abide by the President or his nominee's determination unless otherwise agreed in writing between the parties until the [R] property is actually sold.
That on completion of the sale of the [R] property the proceeds of sale shall be paid in the following manner and priority:
a)in payment of real estate agent's commission and expenses associated with and for the sale of the [R] property;
b)in payment of the legal costs and disbursements for acting on the sale of the [R] property in accordance with Order 6(e) above;
c)in payment of any amount required to be paid to the President of the Real Estate Institute of New South Wales or his nominee in accordance with Order 6(k) and Order 6(l)
d)In payment of sixty percent (60%) of the balance to the wife;
e)In payment of any adjustments or payments to the wife or third parties in accordance with Order 6(c), Order 6(h) and Order 6(j) above;
f)In payment to the wife in the sum of one thousand three hundred and seventy five dollars ($1,375.00) being half share of the valuation report fee of the [R] property; and
g)In payment of the then remaining balance to the husband.
That within fourteen (14) days of Orders, the Husband do all acts and things and sign all documents necessary so as to lift any restrictions on the following bank accounts and the husband shall do all acts and things and sign all documents necessary to transfer into the wife's sole name the monies held in the following bank accounts and that the wife retain in her sole name the following bank accounts:
(a)Westpac Banking Corporation BSB […] account number 24[…];
(b)Westpac Banking Corporation BSB […] account number 56[…];
(c)Westpac Banking Corporation BSB […] account number 27[…];
(d)Westpac Banking Corporation BSB […] account number 18[…];
(e)Westpac Banking Corporation BSB […] account number 22[…]; and
(f)Westpac Banking Corporation BSB […] account number 21[…] which is held on trust for [the child J].
That within fourteen (14) days of Orders, the Wife do all acts and things and sign all documents necessary so as to transfer into the husband's sole name the monies held in the following bank account and that the husband retain in his sole name the following bank account:
(a)Westpac Banking Corporation BSB […] account number 16[…].
That within twenty one (21) days of Orders, the wife do all acts and things and sign all documents necessary so as to transfer to the husband all her right title and interest in the property situate and known as [C property] in the State of New South Wales (being the whole of the land contained in Folio Identifier […]) (hereinafter referred to as "the [C] property").
That simultaneously with Order 10 that the husband do all acts and things and sign all documents necessary and pay all monies necessary to discharge the mortgage to Westpac Banking Corporation secured on the title to the [C] property.
That simultaneously with Order 11 the husband shall pay to the wife the sum of two hundred and four thousand dollars ($204,000.00) and also pay to the Australian Taxation Office the wife's liabilities owed to the Australian Taxation Office.
That in the event that the [C] property is not transferred pursuant to Order 11 above, then the [C] property shall be dealt with on the following basis:
(a)That the [C] property be listed for sale on the twenty second (22nd) day of the date of these Orders.
(b)That the [C] property be auctioned by way of public auction on the date being three (3) months from the date of these Orders, unless otherwise agreed to in writing by the husband and the wife then the [C] property shall be auctioned by way of a public auction on the date agreed to in writing by the husband and the wife and such date shall not be more than four (4) months from the date of these Orders.
(c)That pending completion of the sale of the [C] property, the parties shall be equally responsible for and pay as and when they fall due all rates, charges, usage, taxes and insurances with respect to the [C] property failing which any such costs charges or amounts not paid by either party shall be deducted from whichever party's share of the proceeds of sale of the [C] property who did not pay or contribute in accordance with Order 14 below.
(d)That in accordance with Orders 13(a) and 13(b) above, the [C] property be listed with a licensed real estate agent/agency agreed to between the parties and, failing agreement with […] Realty by way of an exclusive agency agreement for a maximum of three (3) months at a time and the parties shall forthwith and prior to the twenty second (22nd) day of the date of these Orders do all acts and things and sign all documents necessary to list the [C] property with an agent/agency referred to in this Order.
(e)That the parties agree in writing prior to the twenty second (22nd) day of the date of these Orders to appoint a solicitor to act on behalf of the parties on their sale of the [C] property and, failing agreement between the parties, that Sawaya Solicitors be appointed as the solicitor firm to act on behalf of the parties in relation to the sale of the [C] property with all instructions for the husband in relation to the sale to be through Watts McCray Lawyers Parramatta.
(f)That the parties facilitate inspections of the [C] property by director/s and/or staff of the real estate agency appointed and referred to in Order 13(d) above and also that the parties facilitate inspections of the [C] property by any prospective purchasers at any reasonable hour.
(g)That in the event the [C] property is not tenanted but vacant neither party shall be at liberty under any circumstance to occupy, move into, reside, squat or live in the [C] property.
(h)That any damage or other claim to the property or any inclusions on the property by any purchaser under a Contract for Sale shall be borne by the parties equally and any such monies shall be deducted from the parties share of their proceeds of sale of the [C] property in accordance with Order 14 below.
(i)That the parties not be present during any inspections or open homes of the [C] property.
(j)That in the event the [C] property is vacant, then the wife shall organise for a cleaner and/or gardener to maintain the [C] property in a clean and tidy condition and any costs associated with the cleaner and/or gardener shall be deducted prior to distribution of the parties share of proceeds of sale of the [C] property in accordance with Order 14 below.
(k)That the reserve price in respect of the sale of the [C] property shall be that amount agreed upon in writing between the husband and the wife at least seven (7) days prior to the scheduled auction date and, in the absence of agreement, the reserve price for the [C] property shall be determined by the President of the Real Estate Institute of New South Wales or his nominee and the parties shall abide by the President or his nominee's determination unless otherwise agreed in writing between the parties.
(l)That in the event and if the [C] property is not successfully auctioned and sold as provided for in the Orders above, then the [C] property shall be resubmitted to auction at intervals of not less than one (1) calendar month apart and not more than two (2) calendar months apart with a reserve price for the [C] property each time to be agreed in writing between the husband and the wife at least seven (7) days prior to the scheduled auction date and, in the absence of agreement, the reserve price for the [C] property shall be determined by the President of the Real Estate Institute of New South Wales or his nominee and the parties shall abide by the President or his nominee's determination unless otherwise agreed in writing between the parties until the [C] property is actually sold.
(m)That pending the completion of the sale of the [C] property neither party shall further encumber the [C] property nor increase the amount of the mortgage over the [C] property.
(n)That pending completion of the sale of the [C] property any and all income, rent and other monies derived from the [C] property shall be paid into the Westpac Banking Corporation joint account number BSB […] account number 16[…] or directly into loan account number BSB […] account number 13[…].

That on completion of the sale of the [C] property the proceeds of sale shall be paid in the following manner and priority:
(a)In payment to discharge the mortgage to Westpac Banking Corporation and any fees and charges associated thereto over the [C] property;
(b)in payment of real estate agent's commission and expenses associated with and for the sale of the [C] property;
(c)in payment of the legal costs and disbursements for acting on the sale of the [C] property in accordance with Order 13(e) above;
(d)in payment of any amounts required to be refunded to a party in accordance with Order 13(c), Order 13(h) and Order 13(j).
(e)in payment of any amount required to be paid to the President of the Real Estate Institute of New South Wales or his nominee in accordance with Order 13(k) and Order 13(1) above;
(f)In payment of sixty percent (60%) of the balance to the wife;
(g)In payment of the then remaining balance to the husband.
That simultaneously with Order 8 above, the wife shall not have any right title or interest or entitlement nor be responsible for any mortgage and any other liabilities in respect of the property situate and known as [N property] in the State of New South Wales being the whole of the land contained in Lot […] Deposited Plan […] ("the [N] property") and the husband shall retain his interest in the [N] property to the exclusion of the wife.
That simultaneously with Order 8 above, the wife shall not have any right title or interest or entitlement nor be responsible for any mortgage and any other liabilities in respect of the property situate and known as [S property] in the State of New South Wales being the whole of the land contained in Lot […] Deposited Plan […] with the current certificate of title being Volume […] Folio […] ("[S] property") and the husband shall retain his interest in the [S] property to the exclusion of the wife.
That unless specified in these Orders, each party be solely entitled to the exclusion of the other party to all the property and chattels of whatsoever nature and kind in possession of that party as at the date of these Orders, and for this purpose:
17.1bank accounts are deemed to be in the possession of the person whose name appears on the bank records;
17.2shares, superannuation and managed investment funds are deemed to be in the possession of the person whose name appears upon the share script or fund statement;
17.3motor vehicles are deemed to be in the possession of the person whose name appears on the registration certificates;
17.4the husband and wife are declared the sole legal and beneficial owners of all other items including real property, bank account funds, furniture and furnishings, jewellery, insurances and personal effects presently in the possession or control of each of them respectively (including in relation to the husband real property co- owned with third parties).
That the parties authorise and direct and sign all documents necessary to cause the net proceeds currently held in Grech Partners Trust Account in the sum of one hundred and seventy thousand nine hundred and ninety five dollars and twenty two cents ($170,995.22) to be distributed in the following manner and priority:
a.As to the sum of eight thousand four hundred and forty eight dollars ($8,448.00) to […] School;
b.As to the sum of ninety seven thousand five hundred and twenty eight dollars and thirty three cents ($97,528.33) to the wife; and
c.As to the sum of four thousand two hundred and twenty four dollars ($4,224.00) to the wife being for half of Term 1 school fees; and
d.As to the sum of twelve thousand dollars ($12,000.00) to the wife being for unpaid child support from October 2008 to April 2009;
e.As to the balance to the husband.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation to the deed or

Orders sought by husband

That an Order by way of alteration of property interests pursuant to s79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 9 of this document.
That the wife, within 6 weeks of the date of the making of these orders, do all things and sign all documents necessary to transfer to the husband all of her right title and interest in the property situated at and known as [R property] in the State of New South Wales being the whole of the land contained in Folio Identifier […].
That simultaneously with compliance by the wife with paragraph 2 above, the husband do all things and sign all documents necessary to transfer to the wife all of his right title and interest the property situated at and known as [C property] in the State of New South Wales (being the whole of the land contained in Folio Identifier […]) (hereinafter referred to as "the [C] property").
That simultaneously with compliance by the husband with paragraph 3 above, the wife do all things, sign all documents and pay all monies necessary to discharge the mortgage to Westpac Banking Corporation secured on the title to the [C] property.
That both parties do all things and sign all documents necessary to transfer, in to the wife's sole name:
5.1.Westpac Bank account number 16[…] currently in the joint names of the parties.
That both parties do all things and sign all documents necessary to authorize Grech Partners to distribute the funds remaining held by that firm as at 17 April 2009 equally between the parties.
That each party be and remain liable for any outstanding debts in his or name, whenever and however arising, including but not limited to taxation liabilities.
That, subject to these Orders, the wife shall be the absolute owner, at law and in equity, of:
8.1. Her Jewellery.
8.2. Her motor vehicle.
8.3.All other real and personal property now in her possession, custody or control,
8.4.All cash at bank and monies invested in any bank, building society or credit union account standing in her name.
8.5.All financial resources, including superannuation benefits, to which she is or maybe entitled.
That, subject to these Orders, the husband shall be the absolute owner, at law and in equity, of:
9.1.His interest in the property situate at and known as [N property]
9.2.His interest in the property situate at and known as [U property]
9.3.His motor vehicle
9.4.All other real and personal property now in his possession, custody or control.
9.5.All cash at bank and monies invested in any bank, building society or credit union account standing in his name.
9.6.All financial resources, including superannuation benefits, to which he is or maybe entitled.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2009] FamCA 680

31 July 2009

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