Costello and Jones
[2017] FCCA 335
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COSTELLO & JONES | [2017] FCCA 335 |
| Catchwords: FAMILY LAW – Property – allegations of non-disclosure on both sides – where there is a difficulty in assessing the extent and value of the property pool. |
| Legislation: Family Law Act 1975, ss.79(s), 79(4), 75(2) |
| Cases cited: Stanford v Stanford (2012) FLC 93-495 |
| Applicant: | MR COSTELLO |
| Respondent: | MS JONES |
| File Number: | MLC 4909 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 10 October 2016, 11 October 2016 & 12 October 2016 |
| Date of Last Submission: | 12 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Davis of Counsel |
| Solicitors for the Respondent: | Harwood Andrews Lawyers |
ORDERS
The orders of the court made 15 March 2016 are hereby discharged.
The wife shall pay to the husband the sum of $104,348 within 60 days of the date of these orders (“the payment”).
Contemporaneously with the payment:
(a)the wife shall do all such acts and things and sign all such documents as may be necessary to transfer to the husband at the expense of the husband all of her right title and interest in the real property situate at and known as Property M in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) folio (omitted) (“the Property M property”);
(b)the husband shall indemnify the wife against all payments and liability for and discharge absolutely the mortgage to (omitted) Bank and any other encumbrance over the Property M property, and indemnify the wife for all rates, taxes and outgoings of or with respect to the Property M property of whatsoever nature and kind;
(c)the husband shall do all such acts and things and sign all such documents as may be necessary to transfer to the wife at the expense of the wife all of his right title and interest in the real property situate at and known as Property P in the state of Victoria being the whole of the land more particularly described in Certificate of Title volume (omitted) folio (omitted) (“the Property P property”);
(d)the wife shall indemnify the husband against all payments and liability for and discharge absolutely the mortgage to (omitted) Bank, if any, and any other encumbrance over the Property P property, and indemnify the husband for all rates, taxes and outgoings of or with respect to the Property P property of whatsoever nature and kind.
In the event that the payment is not made by the due date, the parties shall do all such acts and things and sign all such documents as may be necessary to place the Property P property on the market for sale (“the sale”), and the proceeds of the sale shall be applied as follows:
(a)first to pay all costs and commissions of the sale;
(b)second to discharge any encumbrance over the Property P property;
(c)third so much of the payment as is outstanding to the husband together with interest at the rate of 8.5% per annum from the due date to the date of payment; and
(d)the remainder to the wife.
Pending the payment, or completion of the sale referred to in paragraph 4 hereof:
(a)the wife shall have right of occupation of the Property P property and shall be responsible for all rates, taxes and outgoings of or with respect to the Property P property of whatsoever nature and kind; and
(b)the husband shall have right of occupation of the Property M property and shall be responsible for the mortgage payments, and for all rates, taxes and outgoings of or with respect to the Property M property of whatsoever nature and kind.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account shall be deemed to be the property of the husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Costello & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4909 of 2015
| MR COSTELLO |
Applicant
And
| MS JONES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property proceedings arising from the breakdown of the marriage between Mr Costello (“the husband” or “Mr Costello”) and Ms Jones (“the wife” or “Ms Jones”).
The proceedings are slightly unusual, in that it is agreed between the parties that they will each retain a property of the marriage, and the dispute is whether, after considering a chattels distribution, there ought to be a payment by one party to the other by way of property settlement.
The unusual nature of the proceedings lies in the nature of the chattels. They are comprised predominantly of a collection of (omitted) memorabilia which includes, in the words of the wife, “valuable old (omitted)”[1].
[1] The affidavit of the wife affirmed 11 August 2015 and filed 12 August 2015, paragraph 16
The whereabouts, or even existence of many of those items is hotly disputed between the parties and has been the source of much contention and conflict.
As with any marital property proceedings, the substantive issues in this matter may be set out as follows:
A. Is it just and equitable in all the circumstances to alter the property interests of the parties?
B. If it is just and equitable what are the property interests of the parties and what is their value?
C. If it is just and equitable to make orders altering the parties’ property interests, what were the contributions of the parties to the acquisition, maintenance and improvement of their property?
D. Should the contribution-based entitlements of the parties be adjusted by reason of the matters set out in s.75(2) of the Act?
E. In light of the above findings, what orders ought to be made to effect a just and equitable settlement between the parties?
Background
Mr Costello was born on (omitted) 1959 and is currently 58 years old. He is employed as a (occupation omitted) at a (employer omitted) and lives at the former matrimonial property at Property M (“the Property M” property).
Ms Jones was born on (omitted) 1971 and is currently 45 years old. She is employed as a (occupation omitted) at (employer omitted) and lives at the parties’ second property at Property P (“the Property P property”).
The parties began living together on (omitted) 1999 and were married on (omitted) 2006. They separated in April 2012. As far as the court is aware they are not yet divorced.
There are no children of the marriage. Ms Jones has two now adult children from a previous marriage and Mr Costello has one adult child from a previous marriage.
Ms Jones’ children lived with the parties throughout the relationship and marriage.
From the date of separation in April 2012 to December 2012, the wife and her children remained in the Property M property so that her older daughter could complete her secondary education, and the husband lived in the Property P property.
In December 2012, Ms Jones’ daughter having completed her final exams, Ms Jones moved into the Property P property and Mr Costello returned to the Property M property.
Mr Costello has repartnered and lives with his partner in the Property M property.
It is unclear whether Ms Jones has repartnered.
Procedural History
The proceedings were commenced when Mr Costello filed an Initiating Application, an affidavit in support, and a Financial Statement on 2 June 2015.
Ms Jones filed her Response, an affidavit in support and a Financial Statement on 12 August 2015.
The parties first came before me in the duty list on 17 August 2015. They were able to come to agreement on that day and signed consent minutes regarding the filing of documentation for a Conciliation Conference and preparing valuations.
On 17 August 2015, I ordered the parties to attend a Conciliation Conference on 1 December 2015, and set the matter down for trial on 15 August 2016 with detailed directions regarding the filing of material.
The parties were unable to come to agreement regarding inspection of the Property M and Property P properties to catalogue chattels, so I made Orders on 17 August 2015 for each party to inspect the property where the other resides on that day.
The parties attended a Conciliation Conference on 1 December 2015 but were unable to come to an agreement.
The parties came before me on 18 February 2016 for mention and were again unable to come to agreement.
The parties were both self-represented at the time, and on that day I made Orders for the Property M and Property P properties to be valued by a single expert, and for the valuations to be annexed to an affidavit sworn by the valuer and filed with the court.
On 23 February 2016, the husband filed an Application in a Case seeking an injunction preventing the wife from dealing with certain bank accounts, that Application being abridged to 15 March 2016.
On 15 March 2016 the parties came before me in the duty list and I made orders in the form of an interim injunction that Ms Jones be restrained from removing funds from her (omitted) bank account until further order of the court.
On 26 July 2016 the husband filed an affidavit sworn on the same day.
On 29 July 2016 the wife filed an affidavit sworn by property valuer Mr A on 28 July 2016, and on 1 August 2016 she filed an Amended Response, her Trial Affidavit and Financial Statement affirmed on that day, and the affidavit of her mother, Ms S (“Ms S”), also sworn on 1 August 2016.
On 4 August 2016 Mr Costello filed his Trial Affidavit and Financial Statement, both affirmed 3 August 2016.
On 11 August 2016 the husband filed his Outline of Case Document, with the wife filing hers on 12 August 2016.
On 15 August 2016 the parties appeared before Judge O’Sullivan, as I was unable to hear the matter on that day. Judge O’Sullivan adjourned the matter to be heard before me on 10 October 2016.
The trial began on 10 October 2016 and ran for 2½ days, with Mr Costello appearing in person, and Ms Jones represented by counsel.
Witnesses were the husband, the wife and Ms S, and all underwent cross-examination.
At the end of the trial I reserved my decision.
Issues and Evidence
A. Is it just and equitable in all the circumstances to alter the property interests of the parties?
This question is mandated by s.79(2) of the Family Law Act 1975 (“the Act”), which states that a court must not alter the property interests of parties to a marriage unless it is just and equitable to do so.
In Stanford v Stanford[2], the High Court said the following at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
[2] Stanford v Stanford (2012) FLC 93-495
In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[3] .
[3] Bevan & Bevan [2013] FamCAFC 116 paragraph 70
In this case the parties were in a de facto relationship and marriage for 12½ years. They acquired property together and are now separated. Therefore there is not and will not be common use of their property in the future.
As there is nothing in this case to distinguish it from “the vast majority of cases”, I find that it is just and equitable in all the circumstances under s.79(2) to consider an alteration of the parties’ property interests in this case.
B. If it is just and equitable what are the property interests of the parties and what is their value?
Real property
The real property interests of the parties are easily described. They consist of legal interests in the properties at Property M and Property P, both of which are registered in joint names.
The values of those properties are agreed at $650,000 for the Property M property and $470,000 for the Property P property.
The (omitted) shares
Before and during the relationship and marriage, the husband acquired shares in an entity called the (omitted) which he describes as “a (omitted) (sic) (omitted) and receive discounts and rewards through shares by buying as a group”[4]. It is his evidence that he joined the (omitted) in 1996.
[4] Affidavit of the husband affirmed 19 and filed 21 September 2016 paragraphs 15
On 15 August 2013, the shares were “cashed in” and the sum of $45,312.55 was deposited into the parties’ business account.
On 19 August 2013, the wife transferred $45,000 of those funds into her personal account with the (omitted) bank. The husband says that he neither knew of nor consented to this transaction.
By 11 September 2013, all of those funds had been transferred to the wife’s (omitted) bank account in sums ranging from $1000 to $5000.
On 2 December 2013, the wife withdrew the sum of $40,000 from her (omitted) bank account, which, she says, was provided as a loan to Mr I, who was apparently her partner at the time. It is Ms Jones’ evidence that Mr I has since repaid that loan in full.
Ms Jones deposed on 1 August 2016 that she had used $25,000 of the proceeds of the (omitted) share redemption to pay “my capital gains tax” and that she retained the balance which she had used in part to pay her legal costs of $15,000, with $5,000 remaining in her bank savings[5]. She accepts that the whole of the $45,000 she withdrew from the parties’ joint account was applied to her personal use.
[5] Affidavit of the wife affirmed 1 August 2016 paragraph 28
Ms Jones’ use of those joint monies will be taken into account in my consideration of a property settlement that is just and equitable in all the circumstances.
The (omitted) memorabilia and other chattels
When it comes to the identification and valuation of the (omitted) memorabilia and other chattels of the relationship and marriage, the complexities of this case come into sharp focus.
Before and during the marriage, the parties developed a collection of what they call “(omitted)”, or (omitted) memorabilia which, as already stated, the wife describes as “valuable old (omitted)”.
The wife also claims that she had a collection of valuable crockery and other personal items which were at the Property M property in December 2012, and appear not to be there now.
It is the evidence of the wife that at the time she left the Property M property in December 2012, there were over 100 items stored either in the house or in outbuildings or sheds on the property.
These included items described as follows:
· 1920s (omitted) in (omitted) livery;
· 1940s (omitted) in (omitted) livery;
· 1920s 3-piece (omitted) enamel sign 9 x 9;
· 15 x various (omitted) dispensers in various livery restored;
· 1950s (omitted) original livery Bread Bin containing five High Boy pumps;
· 1950s (omitted) enamel sign 6 x 3;
· Royal Albert old country Roses chintz teapot and assorted sugar bowls, cake plates etc;
· large collection of Cornishware (blue and white striped China) greenshields, black shield and (omitted) back stamps;
· set of 6 (omitted)/Bradford Exchange plates depicting flowers and birds/butterflies;
· (omitted) vintage china various pieces including teapots, cups and sources in various patterns;
· 1940s (omitted) 4x4 enamel sign;
· airport luggage 5 pieces; and
· white gold half carat diamond earrings.
This is, of course, not an exhaustive list, but one which gives a flavour of the variety of chattels alleged to form part of the marital property pool.
The wife values the (omitted) memorabilia alone at $240,000 based on what she said at trial was her experience of having bought and collected these items over the period of the relationship and marriage.
It is not disputed between the parties that they had each and jointly sold some items of the (omitted) memorabilia both before and after the date of separation.
The evidence presented at trial indicates that the wife sold $20,000 worth of items to a (omitted) between 2012 and 2014, and that she retained the proceeds of those sales.
She also concedes that she sold a further $4,500 worth of items at a swap meet and kept those proceeds as well.
It is the wife’s evidence[6] that since separation, the husband had received $25,000 for items sold to the “(omitted)” and a further $30,000 from sales to “other collectors and/or second-hand dealers”.
[6] Affidavit of the wife affirmed and filed 1 August 2016 paragraph 18
She says that a further $30,000 worth of items were sold jointly by the parties, and that those funds were applied to the mortgage over the Property P property held by the (omitted) Bank. That evidence is not disputed by the husband.
At trial, Mr Costello accepted that he had received $25,000 for the items sold to the (omitted) Bond Store and that he had retained those monies for his own use.
He adamantly denied that he had sold a further $30,000 worth of memorabilia to second-hand dealers and/or other collectors, and further, he denied that he had ever sent Ms Jones a text message on 5 May 2014 which stated: “Sold another $30,000 of (omitted) stuff. Just letting you know”.
When shown a screenshot of text messages which appear to have been exchanged on that day, and after confirming that the telephone number at the top of the screenshot was his, Mr Costello said that he “definitely” denied having sent that message, and agreed with counsel for the wife that in that case, either he or the wife was lying about that matter.
Later in his cross-examination of the husband, counsel for the wife returned to the question of the text message of 5 May 2014.
After some quite confusing exchanges between counsel for the wife, the bench and Mr Costello, it was Mr Costello’s evidence that while he had had the same telephone number for “eight years or more”, the mobile telephone he had with him in court might not be the handset that he had had in his possession on 5 May 2014.
I did not find Mr Costello’s evidence on this issue convincing. His evidence about the handset appeared to change from moment to moment and some of his answers were simply non-responsive.
On the balance of probabilities, I find that Mr Costello did send that message to Ms Jones on that day. However, the sending of the message is not evidence of a sale of the items or Mr Costello’s receipt of the sale proceeds.
I note that on 26 May 2016, solicitors for the wife issued a subpoena to the (omitted) Bank seeking the following information:
[…]
2. Copies of all bank statements of MR COSTELLO (born (omitted) 1959) including savings accounts, pensioner security amounts and term deposits for the period 1 January 2010 to date.
3. Copy of any mortgage loan account statements of MR COSTELLO for the period 1 January 2010 to date.
4. Copy of any Statement relating to any credit card facility of which MR COSTELLO is the primary account holder for the period 1 January 2010 to date.
5. Copy of any loan Application for mortgage and/or personal loans made by MR COSTELLO for the period 1 January 2010 to date.
On the same date subpoenas were issued to “Memorabilia on (omitted)” in (omitted) and “(omitted)” in (omitted) in the following identical terms:
[…]
2. Copies of all sales and purchase ledger accounts, invoices or receipts in respect to the purchase or sale of items of (omitted) or other secondhand collectable items to or from MR COSTELLO for the period 1 January 2010 to date.
3. Photographic records of items of (omitted) or other secondhand collectable items sold to or purchased from MR COSTELLO for the period 1 January 2010 to date.
I further note that on 6 September 2016 the solicitors for the wife lodged a further subpoena addressed to the (omitted) Bank which sought the identical information to that issued on 26 May 2016.
It would appear that no evidence was produced at trial to show the sum of $30,000, or lesser sums adding up to that amount being deposited into Mr Costello’s bank accounts.
I am therefore unable to find that the husband actually sold a further $30,000 worth of memorabilia items and retained the sale proceeds.
In summary then, I have found that of the memorabilia at the Property M property at the date of separation, Mr Costello has had the benefit of the sale proceeds of items worth $25,000 and Ms Jones has had the benefit of sale proceeds of items worth $24,500.
These amounts being almost the same, I will disregard them in the calculations used to effect a property settlement between the parties.
On 17 August 2015, I made orders providing for each party to attend at the other’s property on that day in order to inspect the property for any chattels the party attending might claim as marital property. The order in relation to the wife inspecting the Property M property specifically stated:
1. The wife this day be provided access to the former matrimonial home situated at Property M, for a period of no more than 1 & half [sic] hours to inspect the property and make a list of and take photographs of an (or any) item of property and for this purpose the husband shall ensure the wife has access to all parts of the matrimonial home, garage and outbuilding.
What happened at the Property M property that afternoon is the subject of some controversy.
In her affidavit affirmed and filed on 1 August 2016, the wife deposes that she arrived at the property at approximately 4:15 p.m. and that she waited approximately 45 minutes for her mother to arrive so that Ms S could inspect the property. She then says:
46. That I arrived at 4.15pm and my mother arrived at 5.00pm. As I approached the residence, the husband arrived in his vehicle. The husband verbally abused me from his vehicle claiming that we had “broken the gate”.
47. Once my mother arrived at 5.00pm we waited on the verandah of the property. That approximately 5 minutes later the husband emerged from the house abusing my mother and myself. He informed us that he had telephoned the police and ordered my mother and I off the property. I explained that I had a court order made by consent with him that morning in the Federal Circuit Court and showed the husband a copy of that order made by the court on 17 August 2015. I further explained to the husband that we were entitled to be there pursuant to the order of which was made with his consent [sic].
I note that Ms Jones makes no mention of any other person being present at that time.
In his affidavit affirmed 5 and filed 9 February 2016, the husband says that when he arrived at his home at approximately 4:30 p.m. on 17 August 2015, he was unable to use his driveway as it was blocked by Ms Jones’ car and “that of an unknown male companion”[7]. He annexes to that affidavit photographs that he deposes were taken on that day.
[7] Affidavit of the husband affirmed 5 and filed 9 February 2016 paragraph 3
Those photographs show that Ms Jones was indeed accompanied by a man on that day, who was identified by Ms S at trial as one Mr M, who was said to be a friend of Ms Jones.
It is Mr Costello’s evidence that as a result of the actions and taunting of Mr M, he felt that there was a risk to his safety and that of his partner, Ms C (“Ms C”), who was present in the house at that time.
After ordering Ms Jones and Mr M off the property, Mr Costello entered the house and called the police who arrived approximately 45 minutes later. While Ms Jones and Mr M waited outside, the police then escorted Ms S through the house where she took photographs of various items. It was Ms S’s evidence, both in her affidavit sworn and filed 1 August 2016 and at trial, that she had felt rushed during her inspection of the house, and that she had asked Mr Costello if she could inspect the outbuilding and the shed on the property, but that he had refused.
It is not in dispute that the outbuilding and the shed were not inspected on 17 August 2015, with Mr Costello claiming that he did not allow that to happen as the police were leaving, and he was in fear for his safety.
At trial, however, when asked what it was he thought Ms S might do if he allowed her to inspect the shed, Mr Costello said:
I didn’t expect anybody to do anything. I thought everyone should be pretty respectful. My mother-in-law actually had to be toned down by the police as well.
When he was asked why he had not offered Ms Jones the opportunity to inspect the outbuildings while the parties were waiting for the police to arrive, again Mr Costello stated that he had been afraid for his safety and that of his partner.
I found Mr Costello’s evidence about the events of that day most unsatisfactory. It is clear from his evidence that despite court orders having been made with his consent earlier in the day, he did not fulfil his obligation under those orders to “ensure the wife has access to all parts of the matrimonial home, garage and outbuilding”.
While it might be said to have been provocative of Ms Jones to bring Mr M with her on that afternoon, and it might have been more prudent of her to attend only with her mother, it was clear that Mr Costello did not want her on what he considered to be his property on that day, and that he did not want to afford her the opportunity to make a full inspection of the house, the garage and the outbuilding.
Counsel for the wife tendered to the court a video taken by the wife when she arrived at the property on 17 August 2015.
I viewed that evidence in court, and my re-viewing of it shows that Mr Costello’s description of his encounter with Ms Jones on that day as, “it didn’t go well” was somewhat understated, although it must be said that there was no threat of violence, or actual violence, on that short video.
It was Mr Costello’s clear evidence at trial that he had not removed any items from the shed and outbuilding since 17 August 2015, and he adamantly denied that that evidence was false.
On 7 October 2016, the wife filed an affidavit of Mr K sworn on the same day. Mr K is a Certified Practising Valuer engaged by the parties jointly to inspect and value the contents of the Property P and Property M properties.
Mr K deposes as follows:
6. That my office did received (sic) correspondence from the legal practitioners for the Respondent dated 6 October 2016 in relation to a number of items that were requested to be sighted and valued at the Property M property in the joint letter from engagement that was subsequently not made available for sighting. […]
7. That a number of items were not made available for sighting and valuing at the Property M property by Mr Costello from the list of items required to be sighted in the joint letter of engagement signed by the parties.
Mr K then provides a list of 90 items which, he says, were on the list provided by Ms Jones’ solicitors, but were not made available for inspection when he attended at the Property M property on 10 September 2016. He annexes the original list of 106 items to his affidavit.
He valued the 29 items which he was able to inspect at $5035. Some of those items, obviously, were not on the original list but were present at the Property M property.
Mr K also valued the contents of Ms Jones’ home at Property P and it is his evidence that a fair market value for those items is $1315.
The list of items Ms Jones believed to have been at the Property M property is extraordinarily detailed. It consists, as I have already said, of 106 separate items, each described in some detail. Examples include:
· Approx. 500 oil tins of (omitted) and (omitted) from 1910 to 1970s;
· 2 x 1930s (omitted) tin signs; and
· 1950s (omitted) livery.
It is difficult to believe that Ms Jones would simply have fabricated items in the collection, and I found her evidence at trial on this issue cogent and consistent. I do not believe, on balance, that Ms Jones has fabricated her evidence about the items on the lists she provides.
In addition, Mr Costello’s evidence at trial, when asked what he thought had happened to those items, was that Ms Jones “must have” removed them in the period between April and December 2012 when she was living at the property and he was living at the Property P property.
I am very sceptical about that evidence. The collection held significant value, and it is highly unlikely, in my view, that Mr Costello would not have taken steps to discover the whereabouts of items that were missing on his return to the property in December 2012. There is no evidence that he did so.
I therefore find, on the balance of probabilities, that there were many more items in the (omitted) memorabilia collection of the parties at the Property M property when Ms Jones vacated the property on 22 December 2012 than were there when Mr K inspected the property on 10 September 2016.
It is clear from the evidence of both parties that some of those items were sold, and the proceeds accounted for, as set out above.
However, on the basis of all the evidence of the parties, and having seen both parties in the witness box, I find that it is more probable than not either that Mr Costello has sold further items whose proceeds he has not accounted for, or, as Ms Jones alleges, that he has removed items from the Property M property and has them stored in an unknown location.
However, the number and value of those items cannot be calculated.
Ms Jones asserts that the entire collection was worth about $240,000, but she bases that assertion on her own estimation as a result of having bought and sold items during the marriage.
Ms Jones is not a professional valuer, and I cannot find as a matter of fact that that was the value of the collection.
I find, on balance, that the (omitted) memorabilia and crockery collections accrued by the parties during the relationship and marriage are of greater number and value than those sighted by Mr K, but that their value for the purpose of these proceedings is unquantifiable because of the actions of the husband.
I will deal with the consequences of that finding later in these Reasons.
The business
The business operated by the parties during the marriage is no longer in their possession, and there is no dispute about how its sale proceeds were applied, although there is a dispute about the circumstances under which they were applied.
The sale proceeds were applied to the acquisition of the Property P property, and I simply note that fact here. I will return to the business later in these Reasons when I discuss the parties’ contributions to their assets.
Motor vehicles
In December 2008, the parties’ business purchased a new BMW (omitted) motor vehicle (“the BMW”) for $65,000, and it is not disputed that the wife drove that vehicle for the remainder of the marriage and beyond.
It is the wife’s evidence that she traded the BMW in when she purchased her current Toyota (omitted) in March 2014. Bank records subpoenaed by the husband show that she withdrew the sum of $24,000 to pay for the Toyota on 24 March 2014.
It is the wife’s further evidence that she received a trade-in value of $17,500 for the BMW, but that she was required to pay out the loan attached to it in the sum of $5,800. For the current purpose of ascertaining the parties’ property interests I will value the BMW at $17,500, and will deal with the loan payout when I discuss the parties’ contributions to their assets.
The husband currently owns a Holden Commodore motor vehicle whose value is agreed at $14,000.
The husband’s evidence, uncontradicted by the wife, is that he sold the vehicle he had been driving during the marriage in 2015, and received a $2,000 trade-in for that vehicle when be bought his current vehicle. I will therefore value his vehicle for the purposes of these proceedings at $2,000.
Bank funds
When the parties’ business was sold in 2013, the wife used the sale proceeds to pay out the (omitted) Bank mortgage over the Property P property and to pay out the loan on the BMW. It is her evidence that she used the remainder of the proceeds for her personal use.
Ms Jones' Financial Statement affirmed 11 and filed 12 August 2015 shows that she had $20,000 in bank savings at that time.
Bank statements subpoenaed by the husband show that on 30 June 2015 Ms Jones had $29,304.34 in her (omitted) account.
It was her evidence that at 1 August 2016 she had $5,000 in her bank accounts[8]. However, her Financial Statement, affirmed on the same day, states that she has a total of $6,600 in three accounts, one of which was the (omitted) account which Ms Jones deposes at that time held the sum of $300.
[8] Affidavit of the wife affirmed and filed 1 August 2016 paragraph 28
The purposes of determining the property interests of the parties at the time of trial, I will consider Ms Jones to have had the sum of $6,600 in the bank at that time.
I will return to Ms Jones’ bank accounts when discussing the contributions of the parties later in these Reasons.
In his Financial Statement affirmed on 27 May and filed on 2 June 2016, Mr Costello deposes to a bank balance of $20,000.
In his Financial Statement affirmed 3 August 2016 and filed August 2016, Mr Costello deposes to having a bank balance of $987.50.
He deposes to having an identical amount in the bank in his Financial Statement affirmed 19 and filed 21 September 2016.
In her affidavit affirmed and filed 1 August 2016 Ms Jones states that Mr Costello has over $70,000 in his bank accounts.
Neither Ms Jones nor Mr Costello appears to have been questioned about that assertion at trial, and I can find no evidence to corroborate it in the tendered documents.
I will therefore consider Mr Costello’s bank balance to be $987.50 for the purpose of this exercise.
I will discuss variations in the parties’ bank balances when I consider their contributions to their property.
Superannuation
At the date of trial, the husband had superannuation entitlements worth $57,450 in two superannuation funds.
The wife’s entitlements, also held in two funds, were worth $93,800 at the time of trial, although her Financial Statement sworn 1 August 2016 states that they were worth $56,646 at that time. Documents produced under subpoena by the husband show that Ms Jones’ entitlements in one fund increased from $42,967 to $62,827 between 15 August 2016 and 14 September 2016.
At trial, Ms Jones gave evidence that after she had discovered several small superannuation entitlements by way of Mr Costello’s subpoena, she had rolled them over into one of her larger funds. The total amount in the smaller funds was $20,961.94, which accounts for the increase in her entitlements between affirming her Financial Statement and the date of trial some two months later.
Liabilities
The parties are agreed that the only liability of the marriage is the loan secured by a mortgage over the Property M property and at the time of trial, that loan had the sum of $62,831.24 owing.
Total property interests
The total property interests of the parties can therefore be set out as follows:
Asset
Value
The Property M property
$650,000
The Property P property
$470,000
Wife’s motor vehicle
$17,500
Husband’s motor vehicle
$2,000
Property P contents as valued
$1,315
Property M contents as valued
$5,035
(omitted) memorabilia and crockery collection
Unknown
Husband’s bank funds
$987
Wife’s bank funds
$6,600
(omitted) share sale proceeds
$45,000
Total Assets
1,198,437[9]
Superannuation
Husband
$57,450
Wife
$93,800
Total superannuation
$151,250
Liabilities
Mortgage loan over the Property M property
$62,831
Net assets
$1,135,606
[9] This total does not of course include the unquantifiable value of the apparently missing (omitted) memorabilia and crockery collection.
C. If it is just and equitable to make orders altering the parties’ property interests, what were the contributions of the parties to the acquisition, maintenance and improvement of their property?
S.79(4) states that:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
When the parties began living together in late August 1999, the wife deposes to owning the following property:
· equity in a property in Queensland worth $25,000;
· a motor vehicle worth $1,500;
· furniture and chattels worth $15,000; and
· Limited bank savings of approximately $2,000.
It is her evidence that the $25,000 realised from the sale of the Queensland property, and a loan of $20,000 from her mother, Ms S, were applied to the purchase of the parties’ first joint home at Property L (“the Property L property”).
The wife’s evidence is that the loan to her mother was repaid by the parties during the marriage.
Ms Jones deposes that at the date of cohabitation the husband had not completed his property settlement with his first wife, and that as a result of that settlement he ultimately retained $40,000 in cash from the proceeds of sale of a factory property at Property D (“the Property D property”), and a motor vehicle, after his legal costs of approximately $40,000 had been paid.
However, at trial, she conceded that she had no corroborative evidence for that view, and that she only knew what Mr Costello had told her about his financial affairs at that time.
The husband says he had the following property when the parties began living together in August 1999:
· 50% ownership in the property at Property H worth $250,000;
· 50% ownership in the Property D property worth $165,000;
· 50% ownership in the two businesses which operated from the Property D property, one of which he says had goodwill worth $100,000 and plant and equipment worth $120,000;
· 50% ownership of the furniture and chattels in the property at Property H worth $20,000;
· bank savings of $50,000;
· three motor vehicles with a total worth of $20,000; and
· debts of $2000.
In other words, the husband says he had assets worth approximately $395,500 when the parties commenced living together, while the wife says he had assets worth $40,000 and whatever his motor vehicle was worth.
It is the husband’s evidence that the wife’s equity in the Queensland property was worth only $15,000, that her motor vehicle was worth $1,000, that her furniture and chattels were worth $5,000, and that she had savings of $1,000.
Mr Costello deposes that he had had a (omitted) business since the mid-1980s, first as a home-based business and then as a business operating from commercial premises. When the parties to these proceedings began living together, the business consisted of two operations, known as (business omitted) (“(omitted)”) and (business omitted) (“(omitted)”), which were owned by the husband and his first wife, who had not yet completed their property settlement.
The husband retained the business assets of (business omitted) and (business omitted) as part of his first property settlement. He also retained some sale proceeds from the sale of the Property D property from which the business operated.
The husband’s case is that at that time (business omitted) and (business omitted) held considerable goodwill, built up over the previous decade.
In the absence of a retrospective valuation of the business, it is not possible to quantify its goodwill component in August 1999.
The wife began working for (business omitted) at the beginning of the relationship and the name (business omitted) ceased trading.
In 2005, the parties ceased trading under the name (business omitted), and in 2006 their company, (business omitted), purchased a business called (business omitted) for $80,000 which was met by way of a redraw on the mortgage secured by the Property M property.
It is clear from the evidence before the court that both businesses supported the parties to these proceedings very well while they were operating them, and (business omitted) realised a significant sum when sold in 2013, with goodwill of $181,000.
Ms Jones did not contribute to the business from its inception. Indeed, she walked into a profitable going concern which was later merged into (business omitted), and from which the parties were able to derive considerable income for some 10 years.
I therefore consider that Mr Costello brought into the relationship and marriage a business which had significant value at the date of cohabitation, although it is not possible to ascertain its exact value in the absence of a retrospective valuation.
Mr Costello denies that Ms Jones made any financial contribution to the purchase of the house and land package at Property L in 2000, and says that the purchase price for that property was met from the sale of the Property D property, his savings, and income from the business.
There is no corroborative evidence for either party’s assertion in that regard, but it is clear that Mr Costello had greater financial assets at the commencement of the relationship.
I accept Ms Jones’ evidence that she applied $25,000 to the purchase of the Property L property, and that her mother assisted the parties by lending them money which has since been repaid.
Nevertheless, I find that it is more probable than not that Mr Costello made the greater financial contribution to the acquisition of the Property L property.
I find therefore that Mr Costello’s initial contributions to the relationship and marriage were of significantly greater value than those of Ms Jones.
Contributions during the marriage
In May 2005, the parties sold the Property L property for $330,000 and applied $320,000 of those monies to the purchase of the Property M property, whose purchase price was $490,000.
The remainder of the purchase price was met by way of a mortgage over the Property M property, to which both parties contributed until separation. Since separation, Mr Costello alone has made the mortgage payments for the Property M property, and the mortgage loan at the time of trial was $62,831.
In June 2009, the parties purchased the Property P property for $460,000, the purchase price and costs being met by way of a $120,000 redraw from the Property M mortgage and a loan from the (omitted) bank of $360,000 secured by mortgage over the Property P property.
The parties sold (business omitted) in April 2013 for $306,000 plus stock, $181,000 of that being attributed to goodwill, and $125,000 to plant and equipment.
It is not in dispute between the parties that the net proceeds of that sale, in the sum of $298,000, were applied to the Property P mortgage. The $30,000 from joint (omitted) memorabilia sales was also applied to that mortgage, and the Property P property is now unencumbered.
Throughout the relationship and marriage, both parties worked in the business and both made contributions to the welfare of the family.
Ms Jones’ children lived with the parties throughout their relationship and were supported by both parties.
The business supported the parties well, paying for their motor vehicles, and affording them a very comfortable lifestyle. As already discussed, they accumulated a considerable and valuable collection of (omitted) memorabilia over the period of their relationship and marriage.
I therefore find, on the balance of probabilities that the parties contributed equally to the assets of the marriage during the relationship and marriage.
Post-separation contributions
It was Ms Jones’ evidence at trial that, after separation, she was in charge of the company accounts and that the company paid each party a wage of $900 per week.
However, under cross-examination, Ms Jones said that the Property M mortgage was paid from the husband’s wage and the remainder of that wage went into his (omitted) Bank account.
Mr Costello continues to pay the mortgage loan on the Property M property.
However, it is Mr Costello’s evidence that between separation in April 2012 and about September 2013, Ms Jones had access to the company accounts, and that she took from those accounts, without his knowledge or consent, funds amounting to “around $100,000”[10].
[10] The affidavit of the husband affirmed 19 and filed 21 September 2016, paragraph 17
He also deposes that in September 2013 she retained for her own use the sum of $3071 from the refunded bond in relation to the premises leased for (business omitted).
Documents subpoenaed by the husband from (omitted) Bank, and tendered at trial, show that between 12 November 2012 and 11 September 2013, sums totalling $104,000 were deposited into Ms Jones' (omitted) account in amounts ranging from $500-$5,000, most of those being in the upper part of that range.
It was Ms Jones’ evidence at trial that some of those monies are accounted for as follows:
Payment from Mr Costello for the parties’ jet ski $7,000
Payment for sales of memorabilia $17,000
Family Tax Benefit $5,246
(omitted) share sale $45,000
That is, of the $104,000 deposited to Ms Jones' (omitted) account, $62,000 was deposited from joint funds[11]. That leaves a balance of $42,000. Ms Jones was able to account for the source of $12,246 of that amount,[12] leaving deposits of $29,754 unaccounted for.
[11] The $45,000 from the (omitted) shares and the $17,000 from sales of jointly owned items of memorabilia
[12] The $7,000 from selling her share of the parties’ jet ski to Mr Costello and the $5,246 she received as Family Tax Benefit
When that $29,754 is added to the $62,000 clearly being deposited from joint funds, I find that it is more probable than not that, that Ms Jones deposited a total of $91,754 from joint funds to her personal accounts without the knowledge of the husband after separation.
It is Ms Jones’ evidence that all monies deposited into her (omitted) account were transferred from her (omitted) bank account.
She said that after separation, the Property P mortgage was paid from her (omitted) bank account in the same way as the husband paid the Property M mortgage.
However, documents subpoenaed by the husband from (omitted) Bank show that in addition to regular amounts designated as “pay” and “loan” of $907 and $539.17 respectively, Ms Jones transferred the sum of about $25,000 from the joint account to her (omitted) bank account between April 2012 and August 2013.
Those documents also showed the deposit of the sum of $3,071 into Ms Jones' (omitted) bank account on 3 September 2013, that deposit corresponding to the amount Mr Costello says she retained from the refunded bond on the premises leased by (business omitted). I therefore find that Ms Jones did retain the bond for her own use.
At trial, Ms Jones said she thought both parties had been paid a wage of $900 and that the Property P mortgage loan repayments were about $530 per week. As stated above, the (omitted) Bank account statements appear to show that Ms Jones was paying herself a wage of $907 as well as paying the Property P mortgage from the joint account until the Property P mortgage was paid out using the monies from the sale of (business omitted). Mr Costello appears to have been paid $900 per week less the Property M mortgage payment.
When all of that evidence is taken together, I find, on balance, that Mr Costello made greater post-separation contributions to the parties’ assets.
I will return to the question of the tens of thousands of dollars withdrawn by Ms Jones and unaccounted for later in these Reasons.
Overall, on the basis of the evidence before the court, I find that Mr Costello made 60% (sixty percent) of the contributions to the parties’ assets, and Ms Jones 40% (forty percent).
D. Should the contribution-based entitlements of the parties be adjusted by reason of the matters set out in s.75(2) of the Act?
S.75(2) of the Act states that the following matters are to be taken into account by the court when considering spousal maintenance claims[13]:
[13] Those matters are relevant to property settlement applications because a notional lump sum spousal maintenance payment can be made as part of property proceedings.
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
As already stated, the wife is 45 years old and the husband 58.
The wife deposes to being in good health, while the husband says he suffers from various ailments which restrict his ability to work as a (occupation omitted) and which, he says, will affect his ability to work into the future. He annexes several reports from various medical practitioners to his affidavits but unfortunately, none of those reports is annexed to an affidavit sworn by its author, and none of the authors of those reports were called to give evidence at trial, and the reports are thus not admissible to prove their contents.
Nevertheless, the husband is some 13 years older than the wife and his future working life is therefore likely to be much shorter than hers.
I note that the parties’ incomes are presently very similar.
I note further that while Ms Jones claimed throughout the proceedings that the parties had come to an informal property settlement agreement after separation, there is no evidence of that purported agreement in writing, and Mr Costello denies that it ever existed.
In any event, whether or not there was an oral agreement, there is no agreement in existence which satisfies the requirements of Division 4 of Part VIIIAB of the Act, and I will not take the purported agreement into account.
It is agreed between the parties that Mr Costello will retain the Property M property and Ms Jones the Property P property, which will allow both to enjoy an appropriate standard of living.
There are no children of the marriage.
All of the above are usual factors to be considered under s.75(2) of the Act, and on the basis of the evidence about them, I would have found that an adjustment of 3% (three percent) in favour of Mr Costello should be made to the parties’ contribution-based entitlements to their assets.
However, I stated earlier in these Reasons that I would deal with Mr Costello’s lack of disclosure in relation to the (omitted) memorabilia collection and Ms Jones’ alleged removal of monies from the parties’ joint account without Mr Costello’s knowledge or consent at a later time in the Reasons.
This is that time.
S.75(2)(o) allows the court to take into consideration “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In Gould & Gould [2007] Fam CA 609, the Full Court summarised the law in relation to non-disclosure by a party with special reference to the case of Kannis & Kannis (2003) FLC 93-135. The court then says, at paragraph 27, that in such cases, a court may add the value of the non-disclosure to the property pool and/or consider the non-disclosure as a matter under s.75(2)(o).
In this case, the value of the non-disclosure is unquantifiable, and I therefore consider it under s.75(2)(o) – that is, as a matter required to be taken into account as a matter of justice.
In Kannis, the Full Court quoted from the judgment of Nicholson CJ in Black & Kellner (1992) FLC 92-287 where His Honour quoted another Full Court in Giunti & Giunti (1986) FLC 91-759, at paragraph 75,555:
It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluated. If each party complies with his or her obligation to make full and substantive disclosure of their financial affairs […] there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.
In this case, based on the parties’ evidence about monies received from disclosed sales of the (omitted) memorabilia, the undisclosed portion of the collection must have been worth a significant amount, albeit of an unquantifiable sum.
Mr Costello’s behaviour on 17 August 2015 leads to a very strong inference that he was not prepared for Ms Jones, or anyone acting as her agent, to inspect the Property M property fully on that day, and I take a negative inference from that circumstance.
While Ms Jones’ behaviour on that day was not entirely appropriate either, she was entitled to inspect the entire property, specifically including the shed and outbuilding, for a period of not more than one-and-a-half hours. That she, or more precisely her mother, was unable to do so is almost entirely the fault of Mr Costello.
As I have already stated, I find, on balance, that Mr Costello has either sold or hidden a significant number of items from the parties’ collection of (omitted) memorabilia.
That amounts to a substantial breach of his obligation to provide full and frank disclosure of his financial circumstances in these proceedings. The items were/are jointly owned, and as a matter of justice the husband cannot be permitted to rely on the absence of evidence of those items to have them disregarded in the proceedings. I consider that an adjustment to the wife of 10% (ten percent) should be made for that non-disclosure.
Similarly, in the post-separation period, the wife has withdrawn tens of thousands of dollars from the parties’ joint business account and used those monies for her own purposes.
Some of those withdrawals were clearly legitimate, but others were not. I accept Mr Costello’s evidence that he did not know about, or consent to the withdrawal of $91,754[14] from that account in the eighteen months after separation.
[14] $91,754 set out at paragraph 169-173 of these Reasons
That is also a form of non-disclosure, as the wife had not disclosed those withdrawals in her affidavit material.
I consider that an adjustment to the husband of 7% (seven percent) is appropriate as a matter of justice, for that non-disclosure.
E. In light of the above findings, what orders ought to be made to effect a just and equitable settlement between the parties?
The overall effect of the above adjustments is that, by chance, they cancel each other out. That is:
Husband: 60% + 3% - 10% + 7% = 60%
Wife: 40% -3% + 10% - 7% = 40%.
Therefore, to effect a property settlement between these parties that is just and equitable in all the circumstances, the husband will retain 60% of the known assets and the wife 40%.
The net assets of the parties have been found to be as set out in paragraph 129 above, and their net value is found to be $1,135,606.
Therefore, Mr Costello will retain net assets worth 60% of $1,135,606, or $681,364, and Ms Jones will retain assets worth 40%, or $454,242.
It is agreed between the parties that Ms Jones will retain the Property P property at $470,000, her car worth $17,500, the Property P property contents at $1,315, her bank funds of $6,600, and the proceeds of sale of the (omitted) shares at $45,000. That is, she will retain assets worth $540,415.
Mr Costello will retain the Property M property at $650,000 with its mortgage of $62,831, the contents of the Property M property at $5035, his bank funds of $987, and his motor vehicle at $2,000, assets worth $595,191.
It is therefore obvious that in order to keep the property agreed, Ms Jones will need to pay Mr Costello a sum of money in order to effect the settlement decided by the court.
That sum is $86,173[15].
[15] $681,364 – $595,191= $86,173; $454,242 - $540,415 = -$86,173
In addition to the above settlement, I find that it is appropriate to equalise the parties’ superannuation entitlements. Mr Costello has $57,450 in superannuation entitlements and Ms Jones has $93,800. In order to equalise those entitlements, each party would have $75,625[16].
[16] ($93800 + $57,450) ÷ 2 = $75,625.
That would result in an adjustment of $18,175 being made from the wife to the husband in superannuation entitlements.
I do not propose to order a superannuation split to effect that equalisation. Rather, I will add the amount of $18,175 to the payment Ms Jones pays to Mr Costello.
I have made that decision on the basis that Ms Jones will, in all likelihood, need to obtain a loan secured by a mortgage over the Property P property in order to make the payment required. However, as she is 13 years younger than Mr Costello, and is therefore likely to have a longer working life, she will have longer to repay that loan, and I do not consider an extra $18,175 to be overly burdensome in circumstances where she will retain all her superannuation benefits.
Therefore, in order for the parties to retain the assets already agreed, as well as their superannuation benefits, Ms Jones will need to pay Mr Costello the sum of $104,348.[17]
[17] $86,173 + $18,175 = $104,348.
Conclusion
This matter has been somewhat vexing, largely because of the missing memorabilia.
Neither of the parties was a particularly impressive witness in that regard, and I have found both to have acted in ways that breached their legal obligation to make full and frank disclosure of their assets and financial dealings.
This settlement, which is less than Mr Costello wanted, and much less than Ms Jones sought for herself, will leave each party with some financial security and the ability to get on with their lives.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 28 February 2017
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