Dhar and Hondros

FAMILY COURT OF AUSTRALIA

DHAR & HONDROS

[2016] FamCA 584

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife were married for 12 years and have two children – Where the wife’s parents contributed $200 000 towards the purchase of the former matrimonial home – Where the wife’s parents have lived in the former matrimonial home – Where there is a dispute about the nature of the contribution made by the wife’s parents – Where the wife submitted that the contribution made by her parents should be considered as either a direct financial contribution on behalf of the wife or as the sole property of the wife’s parents – Where the husband submitted that the contribution made by the wife’s parents should be regarded as a gift to both parties or a contribution on behalf of both parties – Where the Court is of the view that the contribution made by the wife’s parents should be considered as a direct financial contribution made on behalf of the wife – Where the contributions overall are found to be 65 percent by the wife and 35 percent by the husband – Where the husband has a greater earning capacity than the wife – Where the wife has primary responsibility for the care of the children – Where it is agreed that the wife has a moral obligation to assist her elderly parents – Where a five percent s 75(2) adjustment is appropriate in favour of the wife – Where an order is made for the wife to receive 70 percent and the husband to receive 30 percent of the available property and superannuation.

Family Law Act 1975 (Cth) – s 79, s 75(2)

Bevan & Bevan (2013) FLC 93-545
Clauson and Clauson (1995) FLC 92-595
Donis v Donis (2007) 19 VR 577
Lorriman & Lorriman [2004] FamCA 1010
Sidhuv Van Dyke (2014) 251 CLR 505
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Dhar

RESPONDENT:

Ms Hondros

FILE NUMBER:

SYC

6253

2012

DATE DELIVERED:

19 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

4 and 5 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Robertson Saxton Primrose Dunn

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

John R Quinn & Co

Orders

Within 30 days the parties shall do all things and execute all documents as may be required to list for sale and sell the property situated at B Street, Suburb A (“the Suburb A property”) following the procedure set out in the following subparagraphs, unless otherwise agreed by the parties in writing:
1.1The listing of the Suburb A property shall be as agreed between the parties and if there is no agreement the listing price shall be as recommended by Mr C, valuer.
1.2The Suburb A property shall be listed with a real estate agent as agreed between the parties or, failing agreement, as nominated by the President of the Real Estate Institute of New South Wales, for sale by public auction on such date as is recommended by that real estate agent.
1.3The reserve price of the Suburb A property for the auction shall, unless agreed upon by the parties not later than 14 days before the auction date, be determined by Mr C, valuer, upon the request in writing of either party.
1.4If the Suburb A property is not sold by auction, or by private negotiation within 14 days after auction, then the parties shall do all acts and things and sign all documents as may be required to continue to offer the Suburb A property for sale by private treaty and, at the request of either party, to offer the Suburb A property for sale by further public auction, upon the terms set out in this order, on a date recommended by the real estate agent.
1.5In the event that the Suburb A property is not so sold by auction or by private negotiation within 14 days after the second auction, or any subsequent auction, then the parties shall continue to comply with sub-clause 1.4 of this order until the Suburb A property is sold.
1.6That upon the sale of the Suburb A property the parties shall do all acts and things and sign all documents as may be required to cause the sale proceeds of the Suburb A property to be disbursed as follows:
1.6.1To pay all costs, commissions and expenses of the sale.
1.6.2To discharge the mortgage to AMP Bank Ltd secured on the Suburb A property.
1.6.3To pay the then remaining balance 76.463 per cent to the wife and 23.537 per cent to the husband.
Pending sale of the Suburb A property the Wife pay as and when they fall due all repayments required to be paid on the AMP Bank Limited loan secured over the Suburb A property and all rates, insurance premiums to keep the Suburb A property insured to its full insurable value against risk of fire, storm and tempest and public liability, and other outgoings relating to the Suburb A property and indemnify and keep indemnified the Husband with respect to all claims, actions and demands which may be made against the Husband in relation thereto.
The wife indemnify the husband from and against all claims and demands which may at any time be made against the husband in relation to the sum of $200,000.00 given to the parties by the wife's parents and used towards the purchase of the Suburb A property.
Each party is otherwise declared pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) the sole owner of all other property and superannuation in their respective possession and/or control.
In the event that either party refuses or neglects to sign any document as required by these orders, the registrars of this Court are appointed pursuant to s 106A of the Act to sign all such documents in the name of that party and to do all things necessary to give validity and operation to the document.
Both parties have leave to re-list these proceedings by arrangement with the Associate to Justice Johnston [associate….] in relation to the implementation of these orders.
All exhibits be released.
The above orders shall not commence operation until 5 August 2016.
Both parties have leave to re-list these proceedings by arrangement with the Associate to Justice Johnston at any time not later than 4 August 2016 for the purpose only of further submissions in relation to the form of the orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6253 of 2012

Mr Dhar

Applicant

And

Ms Hondros

Respondent

REASONS FOR JUDGMENT

These are final property proceedings.
Mr Dhar (“the husband”) 44 years, and Ms Hondros (“the wife”) 42 years, commenced cohabiting upon their marriage in 2001. They separated under the same roof in April 2008 and the husband left the home in March 2013.
They have been unable to agree on a property settlement and have asked the Court to determine this for them.

Applications

The husband seeks orders to the following effect:
·Within 30 days the parties do all things and sign all documents necessary to list for sale and sell the former matrimonial home at B Street, Suburb A on the terms as specified;
·The proceeds of sale be paid to pay all costs, commissions and expenses of sale, to discharge the mortgage to AMP Bank (approx. $409 000) and to pay the balance 60 percent to the wife and 40 percent to the husband;
·Pending sale the wife pay the mortgage repayments and rates, insurance premiums and other outgoings on the property;
·The wife indemnify the husband from all claims at any time against him in relation to the sum of $200 000 given to the parties by the wife’s parents and applied to the purchase of the former matrimonial home;
·Otherwise each party be declared the sole owner of all other property and superannuation in their possession and/or control respectively; and
·An enforcement order.
On the other hand the wife seeks orders to the following effect:
·The husband do all things and sign all documents necessary to transfer to the wife his interest in the said former matrimonial home;
·Upon the husband complying with such order the wife indemnify the husband against any claims brought against him in respect of the first mortgage registered against title in favour of AMP Bank as well as all rates and the wife shall discharge the said mortgage within three months;
·Otherwise each party be declared the sole owner of all other property and superannuation in their possession and/or control respectively;
·An enforcement order; and
·The husband pay the wife’s costs of these proceedings.
At the commencement of the hearing learned counsel for the wife informed the Court that he would be seeking a finding that the circumstances in which the wife’s parents advanced $200 000 towards the purchase of the former matrimonial home constituted the creation of a life estate in that property in favour of the wife’s parents. By the time of final submissions, however, counsel indicated that he abandoned such submission and asked the Court to consider the outcome on the basis of quarantining that $200 000 so that it would be regarded as the sole property of the wife’s parents, or treating the $200 000 as a direct financial contribution on behalf of the wife.

Annexure A

For completeness the form of orders sought by each of the parties is at Annexure A to these Reasons for Judgment.

Background

The husband was born in Country D in 1971. He moved to Australia on 1 July 1996 and is now an Australian citizen. The wife was born in Australia in 1974.
The parties met in approximately September 1997 while they were both students at the E University. They were married in 2001 at which time they commenced living together. In November 2001 the parties participated in a religious wedding ceremony.
After their marriage the parties lived together in a rented unit at Suburb F. The husband worked in retail and the wife worked for the public service. Her salary was approximately $35 000 per annum.
In June 2001 the parties obtained a joint personal loan in the amount of $100 000.
In March 2002 the husband started working at Company G as a consultant earning $45 000 per annum.
In May 2002 the parties went to Country D to attend the husband’s father’s funeral although they travelled separately. The wife’s father paid for her ticket.
In early to mid-2002, the parties commenced to become interested in purchasing a property and inspected some apartments.
In approximately November 2002 the wife’s parents sold their home at Suburb H. The parties and the wife’s parents viewed a number of properties for the parties to purchase. During November 2002 they viewed a property at B Street, Suburb A in New South Wales (“the Suburb A property”). The parties agreed to purchase the property as joint tenants for $450 000.
On 19 December 2002 settlement of the purchase of the Suburb A property took place. The parties and the wife’s parents moved into the property.
The contributions towards the property were as follows:
(a) $7000 from the First Home Buyer’s Grant;
(b)$258 000 from a loan obtained by the parties from Wizard Home Loans in joint names; and
(c)$200 000 from the wife’s parents ($185 000 towards the purchase price and $15 000 towards stamp duty).
The parties borrowed an extra $80 000 above the amount required to purchase the property (“the top up loan”). They used this for purposes including to discharge two personal debts, to purchase a new car and to fund other expenditure. After trade-in, the car purchase cost the parties approximately $19 000.
In February 2003 the parties together with the wife’s parents, signed a letter to Centrelink stating that the wife’s parents had contributed $200 000 towards the purchase by the husband and the wife of the Suburb A property for the purpose of living there together with the wife’s parents. The letter also recorded an agreement between all parties that the parents would live in the property for the remaining years of their natural lives.
Throughout 2003 and 2004 the parties arranged to borrow additional amounts on top of their home loan. The additional amounts totalled approximately $87 900. This funded the installation of built-in wardrobes and some minor renovations such as floor sanding and finishing. Some went towards building costs of the new concrete driveway. But the wife said much of this money was used to purchase clothing and footwear and that a lot was spent on holidays and eating at restaurants. I accept the wife’s evidence about this.
In mid-2003 the parties engaged an architect to draw up plans for the re-modelling of the garage at the Suburb A property and the plans were submitted to I Council for approval. The husband paid the $950 Development Appraisal application fee. The husband completed an owner builder certificate course.
By late 2003 I Council approved the renovation plans. The driveway and concreting was completed at a cost of approximately $11 000.
In October 2003 the parties travelled to Country D to visit the husband’s family. The husband’s mother returned with the parties and stayed at the Suburb A property from November 2003 until February 2004, at which point the husband accompanied her to Country D. He returned to Australia at the end of February 2004.
In April 2004 the husband started working at the W Bank earning an income of $48 600 per annum.
In 2004 the parties’ first child, J was born. The wife took paid maternity leave for approximately six months.
In 2005 the parties commenced further renovation work to the rumpus room, an extension of the dining room, new double garage, granny flat, laundry, bathroom, new windows in the home, new drainage and installation of an air-conditioning unit.
In 2006 the parties refinanced the mortgage secured against the Suburb A property. They discharged the loan from Wizard Home Loans in the amount of $407 078 and refinanced through AMP from whom they borrowed $458 000. The balance was used to pay down credit card debts.
In 2006 the parties’ second child, K was born. The wife took paid maternity leave for some months and then returned to work part-time. The wife’s parents assisted with child care from this time.
In January 2007 the parties borrowed further money to pay off credit cards.
In February 2007 the family went on a holiday to Queensland.
In August 2007 the parties borrowed $20 000 on a personal loan from Hopscotch Money. This money was used to repay credit cards.
In November 2007 the parties travelled to Country D with the children. The costs were funded initially on a new credit card the husband had obtained from Aussie.
In December 2007 or January 2008 the wife opened her own separate bank account in which to have her salary deposited. From this time the husband became responsible for meeting the mortgage repayments and the wife paid for household expenses, the joint personal loan to Hopscotch Money and the children’s expenses.
In March 2008 the wife had a lock installed on the main bedroom door. The husband was informed by the wife’s father that the wife had decided to separate from him.
On 25 April 2008 the parties separated under the same roof.
In August 2008 the husband’s mother passed away in Country D. He travelled to Country D for her funeral.
In February 2010 the wife was made redundant from her employment and received a payment of $49 092. The wife applied this money to pay off the joint loan to Hopscotch Money of $10 522 as well as various other credit card debts including $4606 off the Aussie credit card. In total the wife paid off $38 849 of the parties’ liabilities.
In July 2012 the wife applied for an Apprehended Violence Order (“AVO”) against the husband. The husband consented to the AVO without admissions.
In October 2012 the wife commenced working at Company L.
On 25 February 2013 the parties’ divorce became final.
In February 2013 a default notice was served in relation to the mortgage on the Suburb A property.
On 9 March 2013 the husband was arrested for alleged assault of the wife. He was granted bail. At this time he moved out of the Suburb A property and into rented accommodation at Suburb I. The husband and the children spent time together each alternate weekend from after school Friday to before school Monday, as well as some school holiday time.
On 30 March 2013 the wife’s husband Mr M moved into the Suburb A property.
In April 2013 Mr M started making regular payments on the mortgage on the Suburb A property. I shall refer to this again below.
In late April 2013 the wife started working at Company N, Suburb O.
On 22 May 2013 the criminal proceedings against the husband were heard at I Local Court and the charges were dismissed.
The wife alleged that in June 2013 the husband said that he would make arrangements to sign over his interest in the home and the mortgage to the wife so that the children would have a permanent home to live in. Mr M also said that he heard the husband say this on two separate occasions.
In 2014 the wife and Mr M were married.
On 24 January 2014 parenting orders were made by consent. The orders provide for the children to live with the wife and spend time with the husband on alternate weekends from after school Friday until before school Monday and every Tuesday night. The orders also provide for the children to spend time with the husband for half the school holidays and for both parties not to relocate the children further than 15 kilometres from the I Shire.
On 24 February 2014 these property proceedings were commenced by the husband.
In 2014 P, the child of the wife and Mr M was born.

Credit

The husband

The husband was reasonably responsive to questions during cross-examination. On occasions he was able to make concessions but this was not always the case.
There was a real issue concerning the nature of conversations between the parties and the wife’s parents about the circumstances which ultimately culminated in the wife’s parents selling their home and advancing $200 000 towards the purchase of the former matrimonial home. I shall refer in more detail to these matters below. Suffice it to say that there was a clear difference between the versions of the husband on the one hand and the wife and her mother on the other. The wife and her mother said it was the husband who first raised the idea of the parties and the parents all living in one home with the possible advantages to all parties of that. But the husband denied that he was the moving party and said that in fact it was the wife’s parents who first raised this matter.
I must say I found the husband’s evidence about these relevant matters somewhat unsatisfactory and difficult to believe. I much preferred the version as stated by the wife and her mother.
There were numerous instances where the husband said that he was simply unable to recall relevant events.
Overall I accept much of the husband’s evidence. But I have some reservations and where his evidence is in conflict with that of the wife and her mother, generally I prefer that of the wife and her mother.

The wife

During the early stages of her cross-examination I had the impression that the wife was not particularly forthcoming in her answers to questions. On occasions she took the opportunity to add to the relevant answer information which appeared to me she probably perceived might favour her case. After a time, however, the wife appeared to settle into the role of witness and she was more responsive in her answers to questions.

Having said this, my opinion is that the wife is a witness of the truth. As I have said, where her evidence conflicts with that of the husband I prefer the wife’s evidence.

Mr M

Mr M is the husband of the wife in the proceedings.
He was readily forthcoming and responsive in his answers to questions, and was the most impressive of all witnesses.
I have no hesitation in regarding him as a witness of the truth.

Ms Q Hondros

Ms Q Hondros is the wife’s mother. She was forthcoming and responsive in her answers. She had a slight tendency to want to add material extraneous to the relevant response apparently with a view to assist in the case of the wife.
Having said this, I regard Ms Q Hondros as a witness of the truth.

Circumstances Leading to the Purchase of B Street, Suburb A

There is no issue that in early to mid-2002 the husband and wife commenced looking for an apartment to purchase. During this time they had conversations with a mortgage broker and also with a representative of R Homes. At one point they were considering the possibility of purchasing a R Homes apartment at Suburb S. From their conversations they understood that they would probably have some difficulty in being able to borrow the amount of money required for purchase. It was suggested to them that if they were able to offer some security such as real estate owned by a relative, it would be considerably easier for them to be able to borrow the required funds.
As indicated above, the parties presented different versions about the circumstances which preceded the wife’s parents selling their Suburb H property and committing $200 000 from the proceeds of sale as a deposit for the purchase of B Street, Suburb A.
The version of the wife and her mother is as follows.
The wife said that in 2002 the husband suggested that it would be good to buy a house and that she replied that they did not have the money. The wife said that the husband suggested that they ask the wife’s parents if they would sell their house and then they could all live together in one house as he said people do in Country D. The wife said she said that she did not wish to involve her parents but the husband said that he wanted to talk with them. The wife said that following that conversation she and the husband visited her parents at their home in Suburb H. The wife said that the husband said to the wife’s parents that he and the wife would like to stop renting and buy a house where they could raise a family. She said that he said that it was common in Country D for parents and children all to live together in a big house that they own, that when they have children the parents would be able to see a lot of them because they would be living in the same house and that they would see them every day. The wife said that some days later her mother telephoned her and said that she and her husband had thought about it, that they must have security in their old age and make sure that they would not lose their pension and would not be thrown out of the house. The wife said that her mother said that there would be some advantages because the wife’s father’s cardiologist is in Sydney and all their relatives are in the area. The wife said that following this conversation she and the husband inspected approximately a dozen houses in the Suburb T area. The wife also said that her mother suggested that she and the husband look at a property in Suburb A on B Street. The wife said that she and the husband inspected the property, that then her parents also inspected the property and they agreed to purchase it.
The wife’s mother said in her affidavit that the husband approached her and her husband in 2002 at their home and asked them to sell their home and assist the husband and the wife to purchase a home that they could all live in together. The wife’s mother said that the husband said that this was the way families lived in Country D. She said that he said that it was very good for children to have grandparents living with them and good for grandparents to have grandchildren living with them. The wife’s mother said that approximately a week after that conversation she telephoned the wife and said that she and her husband had thought about the suggestion, that they agreed that it was very important to them for the wife to have a family and be happy but they must have security in their old age and that they would need to make sure that they would not lose their pension. The wife’s mother said that the wife then said that she would inform the husband and start looking for a property. The wife’s mother also said that she saw the property in Suburb A and suggested to the husband that he and the wife should inspect it. She said that she and her husband agreed to its purchase.
On the other hand, the husband’s version is as follows.
The husband said in his affidavit that during early 2002 he and the wife decided that they wanted to purchase a property and decided to look at purchasing an apartment. He said that when they mentioned this to the wife’s parents the parents said that they should all live together in the parents’ Suburb H home, that that would save on living costs and they could help the parties out with children when they had children. The husband said that it was not feasible for the wife and him to relocate to Suburb H and they continued to look at apartments in the Suburb F area.
During her cross-examination the wife agreed that her parents had offered for her and the husband to live with them at their Suburb H home and that her parents said that they could help out with children. But the wife also said that this offer had been made the previous year, that is in 2001, and in the context that her father had said that such a course would enable the husband and the wife to save for the purchase of a home. The wife also agreed that she and the husband decided that this would not be feasible.
The husband said that in or about September 2002 the wife informed him that her parents were putting their home on the market for sale, that they thought it would be a waste of money for the parties to purchase an apartment and they thought the parties should buy a house. He said that the wife suggested that it might be better for all of them to live together in Sydney because her parents were getting older. The husband said that shortly after this conversation he had a conversation with the wife’s mother during which she said that she understood that the wife had mentioned that they thought it would be better if the parties purchased a house, not an apartment. He said that the wife’s mother said that it would be a better investment in the long run and that they could all live together in Sydney. He said that she said that it would be good for all of them because the parents were getting older, the wife’s father had had two heart attacks, the wife’s grandmother lived in Sydney and they would be closer to her if they were living in Sydney, and that they could help the parties when they had children. The wife’s mother confirmed this latter conversation during her cross-examination.
During his cross-examination the husband denied that he had approached the wife and her parents and suggested that if the wife’s parents sold their home and invested in a home for all of them, they would have sufficient funds to purchase a home. Again during cross-examination, the husband said that the first time he learned of the suggestion that the wife’s parents would sell their home and make money available to assist the parties to purchase a house in which they could all live, was at a time after the parents put their home on the market for sale in September 2002. He said that they started looking for homes to purchase at the end of September 2002.
Which of these versions is more likely to be true? Perhaps the explanation for the inconsistencies is due to uncertain recollections about the timing of when certain parts of the relevant conversations in fact occurred.
In my view, it is not of major relevance whether or not the husband was the initiator of the proposal for the wife’s parents to sell their home and contribute to the purchase costs of acquiring a home in which the parties and the parents could subsequently reside. This is because what is significant, in my view, is the fact that the wife’s parents made the $200 000 contribution to the purchase of the parties’ home. However, the issue was keenly contested and it does have some relevance to a submission on behalf of the wife about estoppel by encouragement which I shall refer to below. So I propose to make a finding about it. In my view, it is more probable than not that the version of events deposed to by the wife and her mother is more likely to be correct rather than the version offered by the husband. I detected a note of some uncertainty in the answers the husband provided about this particular matter. As indicated above, generally where his evidence conflicts with that of the wife, I would prefer that of the wife. In addition, the wife’s version was supported by her mother whose evidence, generally, I was impressed with.
There is another issue in relation to this matter which requires some consideration here. It had been suggested to the husband during his cross-examination that the wife’s parents had said in his presence “this is where we want to stay until we die”. The husband denied that they had said this. The wife asserted that her parents had said this. This is relevant to a submission on behalf of the wife that the husband and wife had promised the wife’s parents that if they advanced the $200 000 towards purchase of the Suburb A home, they would be permitted to reside there for the remaining part of their lives. It was suggested that equity would estop the husband and wife from acting contrary to this promise. I shall deal with this below. As counsel for the husband put to the wife, the wife had not referred to this in her affidavit, nor had her mother included this in her affidavit. It is true that the letter to Centrelink dated 13 February 2003 signed by the husband, the wife and the wife’s parents included the statement that all of them agreed that the wife’s parents “would live in the property purchased by [their] daughter and son in law for the remaining years of [their] natural lives.”. However, given the importance of this finding to the submission about estoppel by encouragement I accept the submission on behalf of the husband that the evidence is not sufficiently clear to support the finding sought by the wife about this alleged promise by the husband.

Estoppel by Encouragement

It was submitted by counsel for the wife that the principle involved in estoppel by encouragement applied to this case. It was submitted that the wife’s mother and father relied upon promises of the husband and the wife to the effect that if they were to sell their Suburb H home, which was their only asset of significant value, and provide $200 000 to the parties to assist them to purchase a home of their own, then they would be permitted by the parties to reside in that home for the rest of their lives. It was submitted that because they relied upon such a promise and acted to their detriment by selling their home and advancing the major part of the proceeds of sale thereof, equity would assist them by providing an estoppel against the parties from acting in a way other than in accordance with their promise that the wife’s parents could live in their home for the rest of their lives.
Counsel relied on the following decisions in support of this submission. The first decision was Donis v Donis (2007) 19 VR 577. In this case the respondent and the third appellant, the son of the first and second appellants, were engaged to be married and the second and third appellants promised them half of their farm and one cottage thereon if they married and commenced having children. The respondent and third appellant, thus encouraged, married and had a child immediately thereafter. They later separated and the respondent was evicted from the property. The land was never transferred to the respondent and the third appellant and the respondent sued to enforce an estoppel by encouragement. It was held that the respondent had relied upon and fulfilled her promise to the appellants resulting in disadvantage to her upon breakdown of the marriage. She was awarded compensation.
The second case was Sidhuv Van Dyke (2014) 251 CLR 505. Sidhu and his wife owned a rural property and Van Dyke and her husband moved to live in the cottage on the property. Sidhu and Van Dyke had an affair. Van Dyke and her husband separated and later divorced. Sidhu assured Van Dyke verbally and in writing that he would transfer title of the cottage to her and therefore she never sought a property settlement from her husband. Van Dyke made repairs and maintained the property at her expense. The affair ended and Sidhu refused to transfer the cottage to Van Dyke. Ultimately the High Court found that reliance on the promise had been proved. At 523 the High Court held “it is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise.”.
In my view there are a number of difficulties with this submission. Firstly I have not found that there was any promise to the wife’s parents that they could reside in the Suburb A property for the remaining part of their lives.
But in any event the relief which such an estoppel would provide is not sought by the persons who are said to have acted to their detriment on the promise, namely, the wife’s parents. Rather, the relief is sought by one of the persons who is said to have made that promise, namely, the wife. The wife’s parents are not parties to the proceedings and I infer that they have chosen to accept whatever order the Court might make in favour of their daughter. If they had wished to seek some particular relief they could have made an application in their own right.
As will be seen below, the approach I have determined to take in these proceedings is to give recognition to the significant financial contributions and other contributions which the wife’s parents have made. These will be reflected in the just and equitable order I propose in favour of the wife.
In my view it is unnecessary and inappropriate to further consider counsel’s submissions about estoppel by encouragement.

Funding of Renovations and Improvements

There was an issue between the parties about how various renovations and improvements to the Suburb A property had been paid for.
The wife’s mother said that she and her husband paid for improvements to the property to a total of $63 410. Annexure E to her affidavit was a schedule which set out various items and the cost asserted in respect of each of those items to the total of $68 402. The husband was cross-examined in detail about this schedule as was the wife’s mother. During the course of his cross-examination the husband agreed that the wife’s father paid for the following:
·$1800 roof insulation
·$1200 roof vents
·$1700 tree lopping
·$500 gas meter
·$550 gas installation
·$2600 aluminium fence
·$2600 garage door
·$1100 aluminium gate
·$1500 ensuite
·$2300 hot water system and connection
·$350 ensuite plumbing
·$460 shower screen
The husband did not deny that the wife’s father paid the following:
·$3000 plaster work (for garage and granny flat)
·$1300 rewiring
·An unquantified amount towards new windows for the home and garage.
Counsel for the wife handed the husband a copy of the schedule and asked him to identify overnight those matters which he agreed with, those which he did not know and those which he denied. This schedule became Exhibit 5. Unfortunately some of his answers on Exhibit 5 were inconsistent with the answers which he had given earlier in cross-examination. The husband said that he funded many of the items of expenditure. During the husband’s earlier cross-examination counsel for the wife had suggested if the source of funding those expenses had been what was described as the “top up loan” of approximately $80 000 and the husband and the wife paid off the husband’s credit cards of say $17 000, their joint personal loan of $10 000 and the wife’s credit cards and paid for the motor vehicle, this would have left little money from which such renovations and improvements could have been funded. If learned counsel was correct with the suggested figures, on my calculation there would have been an amount in the vicinity of $30 000 from which the renovations and improvements could have been funded by the parties from the “top up loan”.
The wife’s mother annexed at Annexure D to her affidavit a copy of her National Australia Bank statement which included withdrawals of $20 008 on 16 May 2003 and $3050 on 30 May 2003 which withdrawals she said were applied to the funding of these renovations and improvements. I accept her evidence in this regard.
The position in respect of this funding is not clear. A difficulty in accepting the assertions of the wife’s mother in their entirety that she and her husband spent $63 410 on the renovations and improvements is that apart from the National Australia Bank references referred to above it was not made clear from what source the wife’s mother and her husband could have funded expenditure at this level, especially bearing in mind that their income consisted of the pension.
Doing the best I can in these difficult circumstances, I am prepared to accept that the wife’s parents contributed an amount of at least $25 000 to the renovations and improvement of the Suburb A home.

The Applicable Law

Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) 247 CLR 108. In this case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.

The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 122) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

Balance Sheet Issues

There was really only one issue about the parties’ legal and equitable interests in property. This was the fact that the wife’s case was presented, until the time of final submissions, as involving a finding by the Court that the wife’s parents were entitled to a life estate based on their payment of $200 000 towards the purchase price of the Suburb A property and certain alleged conversations and representations about this.
A consequence was that learned counsel for the wife submitted that the major asset, outside the life interest, was the value of the remainder interest which had been valued by Mr C, registered valuer, at $520 000.
As indicated above, during final submissions learned counsel for the wife abandoned his submission about this. In my view, as a consequence, the assets and values thereof and the outstanding mortgage balance were agreed by the husband and the wife.
Accordingly, the parties’ legal and equitable interests in property and superannuation are as follows:

$

1.         Former matrimonial home at B Street, Suburb A

950,000

2.         Husband’s motor vehicle

2,000

3.         Husband’s bank account

200

4.         Husband’s household contents

2,000

5.         Wife’s household contents

2,000

6.         Wife’s BankWest account

52

^{_____________}

$956,252

The parties each have superannuation benefits as follows:

$

1.         Husband’s AMP Flexible Super Account

89,097

2.         Wife’s Nestle Super Fund

2,079

3.         Wife’s PSS Super Fund

97,066

4.         Wife’s REST Super Fund

40

^{_____________}

$188,282

This is total property and superannuation with a value of $1 144 534.
The only liability which the parties agree should be brought into account is the outstanding mortgage balance on the former matrimonial home of $409 405. They agreed that they would each be responsible for their own credit card and other personal liabilities.
Accordingly, the parties have property and superannuation with a net value of $735 129 ($1 144 534 - $409 405 = $735 129).

Sub-Section 79(2)

Sub-section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
In the present case, the parties purchased their major asset, the Suburb A property as a home in which themselves and the wife’s parents could all reside together. Their circumstances have completely changed since that time. The husband has not resided there for more than three years and he is renting accommodation. The wife has remarried and has a young child. She, her husband, the three children and the wife’s parents have the enjoyment of the home. But the husband does not.
If the Court did not make orders, not only would the parties’ financial interests continue to be enmeshed but the various unresolved issues between them would not be resolved and reflected in court orders. And the result would be unfair particularly to the husband because he is no longer able to reside in the home.
In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

At the time the parties commenced cohabiting they had no property of significant value. The wife had a $3000 credit card debt. The husband owned a motor vehicle subject to a lease. He had liabilities of at least several thousand dollars. The parties borrowed funds on a personal loan to pay out these liabilities.
At the commencement of cohabitation the husband was working in retail Approximately one year after they commenced their cohabitation the husband commenced working with Company G as a consultant earning $45 000 per annum. As indicated above the husband subsequently commenced working at the W Bank and he now works with Company U.
A few weeks after the parties commenced cohabitation the wife commenced full time employment with the public service. She remained in this employment until February 2010 by which time she had been working part time. In February 2010 she was paid a redundancy payment of $49 092 as I have said. In October 2012 the wife commenced working at Company L and in April 2013 she commenced working at Company N, Suburb O. The wife subsequently ceased this employment and she is currently not employed in income-producing work.
Accordingly, both parties have made significant financial contributions by way of the income each earned from their employment respectively and the application of this to funding the purchase of their home and the comfortable lifestyle they achieved. Clearly the husband’s income was at a higher level than that earned by the wife.
A major issue in these proceedings is how the Court would regard the contributions made by the wife’s parents. Their major contribution was the $200 000 which they gave to the parties to direct to the funding required for the purchase of the former matrimonial home at Suburb A. There was a strong submission on behalf of the husband to the effect that it would be wrong for the Court to regard this money as coming by way of contributions pursuant to s 79. It was submitted that this was because the money had been given to both parties for the purpose of purchasing a home for themselves in which the wife’s parents would also have a right to occupy. That is, it was paid in consideration of an agreement by the husband and the wife that the wife’s parents could live in the property. It was submitted that this is clear from the letter signed by all parties sent to Centrelink. It was said that included in the agreement was a right for the wife’s parents to have the exclusive occupation of their bedroom and to have the enjoyment with the parties and the children of all other parts of the home. In these circumstances, it was submitted that the Court should regard the $200 000 as a gift to both parties.
I must say I do not accept this submission.
It is true that the wife’s parents gave this money to the husband and the wife. It is also clear that the purpose was to assist them to obtain a home in which all the parties would be able to reside with the benefits to the husband and wife of having their own home and the benefits to the wife’s parents of having a place in which to reside as well as the benefit of being able to enjoy daily contact with any grandchildren who were born.
It has long been regarded by this Court as being open to the Court to find that a contribution by relatives of one of the parties to proceedings was a contribution on behalf of the party who is their relative. In this regard, the Full Court said in the unreported case of Lorriman & Lorriman [2004] FamCA 1010 as follows at [31]:
The correct approach to gifts coming from the family of one of the parties appears to be settled law. In Gosper v Gosper (1987) FLC 91-818 Fogarty J concluded that such an advance ought generally be treated as being a contribution made by or on behalf of the party from whose family it came. His Honour added a rider that if there was evidence that the donor intended to benefit both spouses, such a conclusion may not be justified. In such circumstances the court may determine that it should be treated as an equal contribution by both parties to the marriage. See also Balnaves v Balnaves (1988) FLC 91-952; 12 Fam LR 488, and Kessey v Kessey (1994) FLC 92-495;18 Fam LR 149. In Pellegrino v Pellegrino (1997) FLC 92-789; 22 Fam LR 474, Chisholm J when considering Gosper spoke of the qualification to the general proposition expounded by Fogarty J as "the qualifying paragraph". He said (at FLC 84,727-84,728; Fam LR 482-483):
“The issue is, when does this qualifying paragraph apply? In what sort of circumstances does the evidence not justify the conclusion that the contribution was made on behalf of the spouse? This is an important issue, because parents often provide financial assistance to their married children. Often, perhaps usually, they do this in a way that benefits their child and their son-in-law or daughter-in-law. Often there is no specific evidence of their intention at the time. I think I can take judicial notice of the fact that frequently parents make such provision in a way that does not involve them formulating or specifically considering whether they intend to benefit their own child or both parties. They are happy to benefit both parties. The gift, as vividly illustrated by the provision of a home in this case, might inherently benefit both. Also, they will realise that their own child’s happiness is bound up with that of their son-in-law or daughter-in-law, so that benefiting one will benefit the other indirectly. They may also have in mind other benefits associated with an extended family, being involved with grandchildren, and enriching the complex web of obligations and attachments that characterise extended families.
…
My reading of the authorities is that in such cases it is normally appropriate to treat the provision as a contribution made by or on behalf of the spouse whose parents made it. I am not sure precisely what cases fall within the qualifying paragraph. An example might be, perhaps, where the parents’ gift is in recognition for some service made to them jointly by the parties.”
It was submitted on behalf of the husband that in the event that the Court decided to treat the $200 000 advanced by the wife’s parents as a contribution, not as a gift, then the Court should regard this as a contribution made on behalf of the wife and the husband.
It is the case that the wife’s parents advanced the $200 000 to both the wife and the husband as the proposed joint purchasers of the home. And it is also the case that the wife’s parents would obtain a benefit by acting in this way. That is, that they would obtain for themselves the benefit of being able to live in the home with the wife, the husband and any children which they might have. But in my view, this does not change the nature of the advance from being a significant contribution. And in my view, the usual principle applies notwithstanding these matters. So I am not persuaded that it would be appropriate for this significant contribution to be found to be other than a contribution on behalf of the wife.
And significant it has been. Without the $200 000 advance, the husband and the wife would not have the home. The situation has been one in which their indebtedness against the home has only increased. Whereas they had a mortgage of $330 000 upon acquisition of the home, at the time of separation, the mortgage had blown out to $448 000. This has been reduced to $409 000 due to the contributions by Mr M.
It is also common ground that the wife’s parents also made other direct financial contributions although the extent of such contributions was far from clear. I am satisfied that the wife’s parents contributed to joint living expenses by making regular contributions to the payment of bills and expenses. They also purchased groceries for the whole family. The husband purchased specific items for himself and the children as required. He conceded that the wife’s parents purchased approximately half the groceries for the family. This was probably more than their own needs.
I have referred above to contributions which the wife’s parents made to renovation and improvement of the property. As indicated, it is impossible to be precise about the extent of this contribution. These contributions would have been at least $25 000 in total and possibly more.
After separation in March 2008 the wife’s parents paid the water rates, council rates and electricity accounts. The husband paid the house insurance following separation until he left in March 2013 when he cancelled the Comminsure policy. Between separation in March 2008 and March 2013 when the husband left the home, he paid the mortgage but this was interest only and did not include any repayments of principal. During this period the wife directed her income to payment of household expenditure. Both parties paid credit card and personal liabilities. At separation in March 2013 the husband stopped paying any mortgage repayments or other outgoings on the home. In fact at this time the mortgage was in arrears.
As indicated above, the wife’s husband, Mr M moved into the former matrimonial home at the end of March 2013. As I have said, at that point the mortgage was in arrears and Mr M paid $8873 to bring the mortgage up to date. He then assumed responsibility for paying the monthly mortgage interest of $2934. Between May and September 2013 he spent $2806 for repairs to the property, over June/July 2015 he spent $11 000 on installation of a new kitchen at the property and between November 2015 and April 2016 he spent $3711 on roof and gutter repairs.
As counsel for the husband submitted, as against the financial contributions which Mr M made to the property he had the benefit of occupancy of the property. I accept this. But I regard the level of his financial contributions to be well above what would be commensurate with reasonable living expenditure and regard him to have made a financial contribution over and above such. After all, he reduced the mortgage from $448 000 at separation to its current level of $409 000.
Both parties made significant contributions to the welfare of their family constituted by themselves and their children. Each of them was involved very much in the parenting of the children. The husband asserted that he cooked almost the entirety of the evening meals. The wife denied this and said that her parents usually cooked the children’s evening meals. I am unable to make a confident finding about who did the cooking. The husband did the vacuuming. He also washed his clothes and those of the children. Each of the parties undertook other domestic duties. In my view, it is more probable than not that the wife, as the primary parent of the children, made a greater contribution as homemaker and parent than the husband.
It was submitted on behalf of the husband that the Court would assess the parties’ contributions up to the time of separation as having been equal. It was also submitted on behalf of the husband that after separation, particularly bearing in mind the mortgage interest payments which the husband made while he continued to reside at the home until March 2013, that he had to set up a new home in order to accommodate the children when they were with him and bearing in mind that from January 2014, after parenting orders were made, they spent approximately 42 percent of their available time with their father, the Court would find equality of contributions also after separation.
I must say I am unable to accept this submission. In my view, the wife’s contributions overall have been much greater than those of the husband. This is largely because of the significant financial contribution made by her parents to the purchase of the home and in the other respects referred to above. There are also the financial contributions made by Mr M as referred to above, which I regard as having been made on behalf of the wife, as well as the parenting contributions by the wife after separation which, in my view, have exceeded those by the husband.
I am also satisfied that since separation, and particularly since the husband left the home in March 2013, the wife has borne much more of the financial burden of supporting the children including their educational and extra curricular activities expenses.
Taking account of all contributions, including the very significant contributions made by the wife’s parents which, as I have said, come in on the wife’s side of the ledger, as it were, in my view, the contributions overall by the wife have been approximately double those of the husband. Accordingly, I assess her contributions overall as having been 65 percent and those of the husband 35 percent.

Sub-section 75(2) matters

The husband is 44 years of age and in good health. He works as a consultant at Company U. His income from this employment is $1520 per week. On all present indications he would appear to have the capacity to be able to continue working in this, or some similar, capacity for the foreseeable future.
On the other hand the wife is 42 years of age and also in good health. As indicated above the wife worked for approximately nine years with the public service and subsequently with Company L and Company N although the last few years of her employment was part time. She has not earned income since April 2013. She has decided to be at home to care full time for the children, her youngest child being only two years of age. Her only income is the $140 child support paid by the husband and her $106 Family Tax Benefit received weekly. In my view, her capacity to earn income is limited by her need to care for the children.
The wife’s husband, Mr M, works full time as a manager. He receives an income of $70 000 plus bonuses which average approximately $500 per month. So his annual income appears to be approximately $76 000. Mr M owns a property at Suburb V subject to a mortgage. The equity in that property would appear to be in the vicinity of $160 000. Mr M also owns a 2006 utility motor vehicle, approximately $2000 in the bank and he has superannuation with REST Super which he thought had a value of approximately $50 000.
The wife has the primary care of the parties’ two children and she also has the care of P, her youngest child. The husband pays child support as assessed at $140 per week.
It was conceded on behalf of the husband that the wife has a moral obligation to assist her elderly parents and that this is a relevant matter to take account of pursuant to s 75(2). It is also the case that the wife’s parents assisted with the care of the children, probably on close to a daily basis.
I have referred above to the property and superannuation of the parties. Their commitments are as set out in their Financial Statements.
In my view the most relevant s 75(2) matters are as follows. The husband has a stronger income earning capacity than does the wife although in considering this, I also take account of the fact that Mr M has a similar earning capacity to that of the husband. The wife has the primary responsibility for the children’s care. Notwithstanding that the husband has responsibility under the current orders for 42 percent of the children’s available time, as submitted by counsel for the wife, it is the wife who as primary parent and in reality bears the financial burden for paying for the children’s education and their extra curricular expenses, and it is not correct to say that the husband has almost a similar responsibility for the children. The wife’s primary responsibility for the children is likely to continue for many years. The wife has a moral responsibility to assist in supporting her elderly parents. They are in receipt of the pension but upon sale of the former matrimonial home they will have to be accommodated elsewhere. I have referred above to their contributions. I note that these have been reflected in the findings about contributions made in favour of the wife. But this does not somehow absolve the wife from her future responsibility to them and without falling into a doubling up exercise, in my view, there is scope pursuant to s 75(2) for consideration of this reality in the wife’s case. These matters favour the wife.

The other relevant s 75(2) matters are firstly, that on the basis of the above finding about contributions, the wife would enjoy a much greater proportion of the available property and superannuation than would the husband. Also, the husband has not re-partnered and therefore has to meet the entirety of his living expenses without assistance of a partner. The husband pays child support of $140 per week. These matters favour the husband and clearly must also be taken into account in determining whether it is appropriate to make a set-off of property and/or superannuation on account of s 75(2) matters.
In my view, taking account of all relevant s 75(2) matters, to achieve a just and equitable order, there would need to be a modest set-off of property and superannuation in favour of the wife.
It was submitted by counsel for the wife that in considering the question of any adjustment pursuant to s 75(2), the Court would have regard to what any adjustment would mean in real terms.
I accept that in the case of Clauson and Clauson (1995) FLC 92-595 the Full Court of this Court indicated that trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:
There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10 per cent and 20 per cent. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
As I have said, in my view, the adjustment in the present case would be modest, taking account of all relevant factors including the disparity of property and superannuation between the parties based on contributions. If the Court was to adjust by 5 percent this would result in a differential of 10 percent which would be $73 513. This is a modest amount but nevertheless, in all the circumstances, in my view, this would be appropriate.

Conclusion and fourth step

The husband is to have 30 percent of the available property and superannuation. This is property and superannuation with a value of $220 539 (30 percent of $735 129).
Leaving aside the husband’s interest in the Suburb A property, he has the following property and superannuation:

$

1.         Motor vehicle

2,000

2.         Bank account

200

3.         Household contents

2,000

4.         AMP Flexible Super

89,097

^{_____________}

$93,297

Accordingly, the husband has property and superannuation with a net value of $93 297.
To achieve property and superannuation with a value of $220 539 he will require an additional $127 242 ($220 539 - $93 297 = $127 242). This will come from the sale of the Suburb A property which has equity of $540 595 ($950 000 - $409 405 = $540 595).
The husband is to have $127 242 (or 23.537 percent) of this equity which would leave the wife with the balance ($540 595 - $127 242 = $413 353).
On the other hand the wife is to have 70 percent of the available property and superannuation. This is property and superannuation with a value of $514 590 (70 percent of $735 129 = $514 590).
Leaving aside her interest in the Suburb A property the wife has the following property and superannuation:

$

1.         Household contents

2,000

2.         BankWest account

52

3.         Nestle Super Fund

2,079

4.         PSS Super Fund

97,066

5.         REST Super Fund

40

^__________

$101,237

Therefore, the wife has property and superannuation with a net value of $101 237.
To achieve property and superannuation with a value of $514 590 the wife will require additional property with a value of $413 353 ($514 590 - $101 237 = $413 353).
This will come from the proceeds of sale of the Suburb A property. This would be 76.463 percent of the equity.
The orders I propose will not affect the earning capacity of either party.
The Suburb A property will have to be sold. This is because the wife indicated during the hearing that she would not be able to pay the husband an amount other than a nominal amount for his interest in the property. From the net proceeds of sale after costs and paying out the mortgage the husband will be paid 23.537 percent and the wife 76.463 percent.
The wife will have her modest property and superannuation. She will also have an amount in excess of $400 000 after paying costs of sale. This could be used as a deposit on a home or towards renting a home. The wife has the obligation to support her parents as I have said. The wife also has the assistance of her husband who owns equity in his Suburb V home. One would be confident that between them, they would be able to find suitable accommodation for themselves, the three children and the wife’s parents.
On the other hand, the husband will have his modest property and superannuation and the admittedly modest amount of approximately $120 000 after paying costs of sale. He said it was very difficult for him to pay the interest on the $448 000 mortgage. So it is difficult to see that he would even be able to purchase a modest apartment. Nevertheless, he has a reasonable capacity to earn income and can apply his lump sum payment to assist in paying rent, in supporting the children or however he might see fit.
Unfortunately, in this case, the available assets are modest.
In all the circumstances, in my view, the orders I propose will reflect a just and equitable result.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 19 July 2016.

Associate:
Date:19 July 2016

ANNEXURE A
Minutes of Orders Sought by the Parties
HUSBAND

That within 42 days of any Orders being made the wife shall:
1.1pay to the Husband the sum of $264,500.00 (the “payment”); and
1.2discharge the mortgage to AMP Bank Ltd secured over the [Suburb A] Property (“the Mortgage”).
That simultaneously with the Wife’s compliance with order 1 the Husband hand to the Wife a properly executed Transfer, which Transfer shall have been submitted to the Husband by the Wife not less than 7 days beforehand, transferring to the Wife all of his right, title and interest in the property at [B Street, Suburb A] being the land described in Folio Identifier 2/20063 ("the [Suburb A] Property").
That in default of the Wife complying with her obligations under order 1 within the time provided in that order, and upon request in writing of the Husband, the parties shall do all acts and things and execute all documents as may be required to list for sale and sell the [Suburb A] Property following the procedure set out in the following subparagraphs, unless otherwise agreed by the parties in writing :
3.1The listing of the [Suburb A] Property shall be as agreed between the parties and if there is no agreement the listing price shall be as recommended by [Mr C], valuer.
3.2The [Suburb A] Property shall be listed with the real estate agent nominated by the husband, for sale by public auction on such date as is recommended by that real estate agent.
3.3The reserve price of the [Suburb A] Property for the auction shall, unless agreed upon by the parties not later than 14 days before the auction date, be determined by [Mr C], valuer, upon the request in writing of either party.
3.4If the [Suburb A] Property is not sold by auction, or by private negotiation within 14 days after auction, then the parties shall do all acts and things and sign all documents as may be required to continue to offer the [Suburb A] Property for sale by private treaty and, at the request of either party, to offer the [Suburb A] Property for sale by further public auction, upon the terms set out in this order, on a date recommended by the real estate agent.
3.5In the event that the [Suburb A] Property is not so sold by auction or by private negotiation within 14 days after the second auction, or any subsequent auction, then the parties shall continue to comply with sub-clause 3.4 of this order until the [Suburb A] Property is sold.
3.6That upon the sale of the [Suburb A] Property the parties shall do all acts and things and sign all documents as may be required to cause the sale proceeds of the [Suburb A] Property to be disbursed as follows:
3.6.1Firstly, to pay all costs, commissions and expenses of the sale.
3.6.2Secondly, to discharge the mortgage to AMP Bank Ltd secured on the [Suburb A] Property.
3.6.3Thirdly, to divide the then remaining balance equally between the wife and the husband.
That pending transfer or sale of the [Suburb A] Property the Wife pay as and when they fall due all repayments required to be paid on the AMP Bank Ltd loan secured over the [Suburb A] Property and all rates, insurance premiums to keep the [Suburb A] Property insured to its full insurable value against risk of fire, storm and tempest and public liability, and other outgoings relating to the [Suburb A] Property and indemnify and keep indemnified the Husband with respect to all claims, actions and demands which may be made against the Husband in relation thereto.
That the Wife indemnify the Husband from and against all claims and demands which may at any time be made against the Husband in relation to the sum of $200,000.00 given to the parties by the Wife's parents and used toward the purchase of the [Suburb A] Property.
That each party otherwise be declared solely entitled to all property including superannuation entitlements in their respective sole name and/or possession.
That in the event that either party refuses or neglects to sign any document required to be signed to comply with this Order, the Registrar of the Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of the Husband or Wife and do all acts and things necessary to give validity and operation to this Order pursuant to s106A Family Law Act.

WIFE

That within 42 days of the making of these orders, the husband do all such acts and things and sign all necessary documents so as to transfer to the wife all their right, title and interest in the property situated at [B Street, Suburb A] in the State of New South Wales and being the whole of the land comprised in title reference ...
That contemporaneously with the transfer set out above the parties do all acts and things and sign all necessary documents so as to discharge the mortgage to AMP Bank Limited secured over the subject property and refinance this loan into her sole name.
That the parties retain all their right, title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.
That other than as otherwise set out in this agreement, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
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 and to do all acts and things necessary to give validity and operation to the said deed or instrument an such Registrar of the Court shall be satisfied upon Affidavit evidence of the party alleging the refusal or neglect that a party is in breach of these Orders.
That the party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this Order such amount to be in accordance with the scale of the Federal Circuit Court/Family Court unless otherwise agreed.
That the husband pays the wife’s costs of and incidental to this Application.

[2016] FamCA 584

19 July 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Remedies

Costs

Injunction

Jurisdiction

Procedural Fairness

$
1. Former matrimonial home at B Street, Suburb A	950,000
2. Husband’s motor vehicle	2,000
3. Husband’s bank account	200
4. Husband’s household contents	2,000
5. Wife’s household contents	2,000
6. Wife’s BankWest account	52
^{_____________}
$956,252

$
1. Husband’s AMP Flexible Super Account	89,097
2. Wife’s Nestle Super Fund	2,079
3. Wife’s PSS Super Fund	97,066
4. Wife’s REST Super Fund	40
^{_____________}
$188,282

$
1. Motor vehicle	2,000
2. Bank account	200
3. Household contents	2,000
4. AMP Flexible Super	89,097
^{_____________}
$93,297

$
1. Household contents	2,000
2. BankWest account	52
3. Nestle Super Fund	2,079
4. PSS Super Fund	97,066
5. REST Super Fund	40
^__________
$101,237