ELAMIN & CHATAH

FAMILY COURT OF AUSTRALIA

ELAMIN & CHATAH

[2013] FamCA 547

FAMILY LAW – PROPERTY – Value of property – Expert evidence – where a court appointed single expert valued healthcare businesses – where wife applied for permission pursuant to rule 15.49 to adduce evidence from adversarial expert on the same issue – it was established that court appointed expert had previously conducted valuations for the purpose of applications for finance – no challenge as to expertise of court appointed single expert – rule 15.49 grounds not established – wife’s application dismissed.

FAMILY LAW – PROPERTY – Disclosure – where the wife asserts non disclosure on the husband’s part regarding his current assets and his assets at the commencement of and during cohabitation – where the husband’s evidence was unreliable unless supported by independent corroboration – where it was within husband’s power to make a full and proper disclosure and that his failure to do so is deliberate – however unable to make a positive finding that the husband had assets which are undisclosed.

FAMILY LAW – PROPERTY – Contributions – where substantial assets of parties are held in entities controlled by husband – where wife made substantial contributions to the increase in value of healthcare businesses – where the husband’s initial higher contribution is to be balanced against his retention of substantial assets and income of the marriage from the date of separation – established that the contributions of the parties are equal.

FAMILY LAW – PROPERTY – Future Needs – Adjustment – Where the husband’s earning capacity is significantly greater than that of the wife’s - where there was evidence before the court that that wife suffers from depression, and that she was predisposed to a worsening of the condition – section 75(2) adjustment of 5 per cent made in favour of the wife.

Family Law Act 1975 (Cth) ss 72, 75(2)
Family Law Rules 2004 (Cth) r 13.08, 13.09, 15.49

Weir & Weir (1993) FLC 92-338

Gould & Gould [2007] FLC 93-333

APPLICANT:

Mr Elamin

RESPONDENT:

Ms Chatah

FILE NUMBER:

SYC

1090

2010

DATE DELIVERED:

25 July 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

5, 6, 7, 8, 14 November 2012, 2 May 2013 and 9 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC with Ms Spain

SOLICITOR FOR THE APPLICANT:

Pearsons

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

This order is made by way of alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) (“the Act”).

IT IS ORDERED

That within 3 (three) calendar months from the date of these orders the husband do all acts and things and sign all documents as may be required to cause the payment to the wife of $2,652,710.
That simultaneously upon the receipt by the wife of the payment in Order 1, the wife do all acts and things and sign and execute all documents necessary to transfer to the husband her right title and interest in the property at G Street, Suburb C, being the land in Certificate of Title ….
That except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession of the other.
That the wife is declared to have sole right, title and interest in any interest in her name in relation to First State Super.
That the parties do all acts and things, sign and execute all documents and give all consents necessary to give full force and effect to these orders.
That if either party refuses or neglects to sign or execute any document, instrument or writing or to comply with any order contained herein after seven days of being required to do so, pursuant to Section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to herein

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1090 of 2010

Mr Elamin

Applicant

And

Ms Chatah

Respondent

REASONS FOR JUDGMENT

introduction

Before the Court are applications for alteration of property interests arising out of the marriage of Mr Elamin (“the husband”) and Ms Chatah (“the wife”). The parties married in 2000 and separated in 2009 after a marriage of some nine and half years.
At the time of the marriage both of the parties were healthcare professionals and the wife was engaged in medical studies.
There is no dispute that, at the commencement of the co-habitation on marriage, the husband jointly with his brother, owned a property at Suburb H. The evidence does not establish that the husband had any significant equity in that property.
The husband had entered into a contract to purchase “off the plan” a property at F Street, G, and had paid a deposit of $31,000 and stamp duty of $28,000.
In addition, the husband had an interest in three healthcare businesses. The extent of the husband’s interest, and in particular the extent to which those interests were encumbered, is the subject of controversy, but it is not disputed that at the time of the marriage he owned a 50 per cent share in a healthcare business known as Business 1A; he had another healthcare business known as Business 1 and a third healthcare business known as Business 5 all of which had been acquired prior to the marriage.
In addition to his real estate and healthcare business interests, the husband had savings of approximately $50,000, a Mercedes Benz motor vehicle and furniture and personal effects.
The wife, at the time of the marriage, owned a property jointly with her sister, which had an agreed equity of approximately $65,000, and minimal savings. She owned a motor vehicle and had superannuation of about $6,000.
During the course of the marriage, the healthcare businesses were bought and sold by the husband and two substantial pieces of real estate were ultimately acquired. Later in these reasons there will be consideration of the purchase and sale of each of the healthcare businesses and the purchase and sale of real estate leading to the retention of the present real properties.
The parties purchased a property at Suburb L in 2001 for $680,000. That property was purchased in the name of the husband.
In 2002 the husband sold his half interest in the H property to his brother. He received $190,000 although the transfer is stamped at a value of $215,000, indicating that the property was then valued at a higher amount.
In 2002 the wife and her sister sold their joint property at P.
In 2003 the parties purchased a property at M for $1,100,000 which was sold for $1,170,000 in 2006.
In 2007 the parties purchased, as joint tenants, a property at G Street, Suburb C, for $2,725,000. That became their home until the parties separated in about May of 2009.
The husband remains living in the C property with his new wife. They are about to have a child. The wife has not re-partnered and lives in rented accommodation.
It was the wife’s case that the husband had not at any time in the course of the proceedings, or during the marriage, given a clear accounting as to the manner in which the healthcare businesses and real estate were bought and financed or the manner in which proceeds of the sale of various assets had been used. She asserts that he has failed to disclose his true financial position.
The matter first came before me on 25 January 2012 at which time, inter alia, orders were made pursuant to rules 13.08 and 13.09 and for the service of requests for answers to specific questions and the provision of answers.
When the matter was again before the Court on 30 March 2012, the husband relied on an affidavit sworn 23 March 2012 which annexed a schedule prepared by his accountant which purported to provide the history of the ownership, purchase, source of purchase money, sale and distribution of funds in relation to each healthcare business and each real property (“the Accountant’s Schedule”). Counsel for the wife drew the attention of the Court to money from the sale of business, amounting to approximately $2,250,000 which was, on the face of the husband’s affidavit, and the Accountant’s Schedule, unaccounted for.
The Accountants’ Schedule was unhelpful and inaccurate. For example, the account asserts that the husband provided $200,000 from his own funds for the purchase of the L property. Even the husband conceded that was incorrect. The accountant contended that the husband purchased the M property for $1,100,000 without borrowing any money. The evidence is that the husband borrowed $750,000 from Permanent Custodians Ltd and $310,000 from Easy Choice Home Loans. The accountant asserted that the husband contributed $1,125,000 from his own funds towards the purchase of the C property (the husband asserted he had contributed $1,100,000 from the sale of Business 1A but later conceded that was not correct) and borrowed $1,600,000. Documents produced by the Australia and New Zealand Banking Group Ltd (“ANZ”) show that the bank advanced $2,895,000 for the purchase of the C property, refinancing the loans over the M property.
Overall, the evidence of the husband’s accounts suffered from the same lack of accuracy as that of the husband. There was clearly no attempt to consult the contemporaneous records of the purchases and sales in order to give an accurate account.
Orders were made requiring the husband to provide to the wife’s solicitors a statement in writing, detailing the transactions in relation to the purchase and sale of any healthcare business, other business or real estate and including the date of each sale or transfer, the actual sale price, details of the amounts received by the husband in any capacity and particulars of how the funds were applied together with supporting documents. The husband was given 14 days to comply with those orders.
When the matter came before the Court for hearing on 5 November 2012 it remained the wife’s position that the husband had not fully accounted for all of the funds which had come into his control and that remained her position at the end of the evidence.
The matters which then fell to be determined at trial were as follows:
1.What was the nature and value of the husband’s healthcare business interests at the date of marriage?
2.Has the husband accounted for all of the monies received from the sale of various business interests and refinancings?
3.Which party should retain the C property?
There was no dispute as to the wife’s initial contribution. There was no dispute that each of the parties had diligently applied themselves during the course of the marriage and that their physical contributions during the marriage should be regarded as equal. There was no dispute that after separation the husband had retained control of the business and real estate interests acquired during the marriage, together with the rents, but that he had also serviced all of the liabilities.

THE WIFE’S APPLICATION TO ADUCE EVIDENCE FROM AN ADVERSARIAL EXPERT

On the first day of the trial an application was made on behalf of the wife to adduce evidence in relation to the valuation of the healthcare businesses from an adversarial expert. In support of that application the wife relied upon an affidavit sworn by her on 5 November 2012 and an affidavit by her solicitor sworn on the same day. The substance of the matters relied upon was, firstly, that the single expert valuer had previously conducted valuations of the healthcare businesses of the husband for the purpose of applications for finance to various banks at the request of those banks.
The wife in her affidavit said that had she been aware of all of the valuations which had previously been carried out she would not have consented to the appointment of the single expert. The wife’s solicitor gave evidence that she had become aware of all of the previous valuations only upon inspection of material produced under subpoena by her which inspection took place on 19 October 2012.
It was common ground that the single expert, Mr S of DP Firm (“DP”), had prepared a valuation in relation to Businesses 1, 4 and 5 on 28 October 2009. The single expert had prepared valuations in relation to Business 1 and the Business 4 on 11 November 2009. The single expert had prepared valuations in relation to Business 1 and Business 5 on 12 May 2010 and a further valuation in relation to Business 1 on 23 November 2011.
Annexed to the affidavit of the wife’s solicitor was a letter dated 30 August 2010 from the then proposed single expert, DP, disclosing that DP had valued the healthcare businesses for finance purposes in 2005, 2009 and 2010 and that DP held a volume of information in relation to the healthcare businesses, copies of which they offered to make available to the solicitors for the parties.
The order for the appointment of DP was made by consent on 4 May 2012, the husband having submitted the names of three prospective single experts to the wife’s solicitors. The choice of DP was the wife’s choice. At the time she made that decision, she and her solicitors must have been aware of the contents of the letter of 30 August 2010.
On 10 February 2012 a number of subpoenas were issued by the solicitors for the wife including a subpoena for the production of documents from the Bank of Western Australia (“Bankwest”). The subpoena to Bankwest sought, inter alia, documents relating to “values / valuations”. It is common ground that by 30 March 2012 when the matter was listed before me for directions all of the documents requested in the subpoena filed in February 2012 had been produced and were available for inspection. It is also common ground that all of the previous valuations carried out by DP were produced by Bankwest. However, it was not until 19 October 2012, after the single expert’s report had been received by the wife’s solicitors, that they inspected the documents which were produced in March 2012. In the course of inspection of those documents, they discovered the valuation reports referred to above, which were produced by Bankwest in answer to the subpoena. Had the documents been inspected on 30 March 2012, or shortly thereafter, the wife’s position may have been different on 4 May 2012 when she consented to the appointment of DP as the single expert valuer. She cannot now rely on information which was freely available to her had the documents been inspected and, moreover, of which notice was given some two years previously.
The second matter which was relied upon in the wife’s application to adduce adversarial evidence was the assertion that there was a difference in methodology between the single expert and the proposed adversarial expert. The DP valuation, which will be discussed at length later in these reasons, valued the healthcare businesses on a future maintainable earnings basis using a capitalisation rate of 18 per cent. The DP valuation relied upon a forecast of projected earnings for the year ended 30 June 2013 which was prepared by the accountants for the business.
The adversarial expert also used a future maintainable earnings methodology and applied a capitalisation rate of 17.8 per cent. It was conceded by both counsel that a variation of 0.2 per cent in capitalisation rate was within the range of accepted variation and not, it therefore follows, a justiciable issue. Where the two valuers differed is that the proposed adversarial expert, rather than relying upon the forecast for the tax year ended 2013, adopted the actual figures for July, August and September of 2012 and projected those figures to make his forecast as to the 2013 earnings.
The circumstances in which an adversarial expert will be allowed to give evidence are governed by rule 15.49. The rule provides that the court may allow a party to adduce evidence from another expert witness on the same issue if it is satisfied that:
a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
c)there is another special reason for adducing evidence from another expert witness.
Neither the difference in the capitalisation rate nor the reliance by the single expert on the one hand on a forecast of earnings, and by the proposed adversarial expert on the other hand of a projection of earnings, comes within the concept of a substantial body of opinion contrary to the opinion given by the single expert. It was not suggested that any other factors were relied upon.
In the course of the application the Court was also informed that the proposed single expert was not available until the last day of the trial and the report upon which it was proposed to rely had been given to the solicitors for the husband only on the first morning of the trial. In all of those circumstances the application to adduce adversarial evidence was dismissed.
On 4 March 2013, in a hearing of interlocutory applications, the wife again sought to agitate her application to adduce adversarial expert evidence, the only matter which constituted a change in circumstances since the matter was first raised was that the proposed witness would be available on the adjourned trial dates.
That application was again refused for the reasons set out in Paragraph 30.

OBJECTION TO THE AFFIDAVIT OF THE SINGLE EXPERT

Mr S of DP produced a valuation which was made available to the parties on 24 September 2012. The objection which was taken on behalf of the wife to his affidavit’s being received into evidence was based on two matters.
Firstly, it was submitted that in the body of the valuation, DP did not explain the differences between the valuation before the Court and valuations which had previously been prepared by them for Bankwest. In particular, objection was taken to the fact that Mr S did not explain, in the body of his document, why his current valuation arrived at a lesser figure than a valuation which had been prepared in November 2011.
If those were matters which were of concern in the wife’s case, then it was open to her at all times after the receipt of the valuation report to ask questions of Mr S. She did not do so. The existence of the previous valuations was at all material times known to the wife and those representing her. The fact that the valuations are not referred to in the affidavit of the single expert is irrelevant in circumstances where the single expert wrote to the parties prior to his appointment putting them on notice that he had previously valued the businesses and where the previous valuations were all available for inspection as and from 30 March 2012.
The next matter that the wife relied upon in seeking to exclude the evidence of the single expert was that he had relied, in addition to the financial statements of the business for the periods ending 30 June 2011 and 30 June 2012, to forecast financial statements for the period 1 July 2012 to 30 June 2013 which had been prepared by the accountants for the business and which were annexed to his valuation.
It became obvious in the course of cross-examination of the single expert that the notes forming part of that forecast were omitted from the affidavit and those notes were tendered separately. The document which is annexed to the affidavit of the single expert, at page 21 of the annexures, clearly makes reference to notes and it would be obvious on any cursory reading of the document that the notes should have been available. Again, the opportunity existed for the solicitors for the wife to ask questions of the single expert to ascertain what weight he placed on the forecast financial statements and what efforts he had made to assure himself that those statements were reliable and that it was appropriate to rely upon them for the purpose of the valuation. She did not do so.

Counsel for the wife conceded that if the forecast financial statements were not taken into consideration by the single expert that might have the effect of altering his capitalisation rate. Counsel also conceded that the exclusion of the forecast financial statements would not affect the validity of a valuation prepared by the single expert relying only on the actual 2011 and 2012 financial statements.
There was no challenge to the expertise of the single expert.
The matters complained of on behalf of the wife were matters which could have been clarified by way of specific questions but were not matters which went to the admissibility of the single expert’s opinion and the application to reject his evidence was dismissed.

the wife’s application for interim property settlement

Among the matters agitated on 4 March 2013 was an application by the wife for the payment to her of the sum of $100,000 by way of interim property settlement. It was her evidence that her savings, together with money raised from the sale of jewellery and from borrowings from family, had been exhausted in the payment of legal costs. It was submitted that the husband, on his own evidence, had approximately $77,000 in bank accounts and that he should pay $50,000 of that amount to the wife and rearrange his borrowings to meet the balance.
The husband opposed the wife’s application. It was submitted that the husband was entitled to use his funds to meet his own legal costs in circumstances where he concedes that the wife will, as a result of the proceedings, receive money ample for the payment of any outstanding legal fees.
The husband’s application for final orders is that he transfer the L property to the wife, subject to its mortgage. In his Case Outline he attaches a Minute of Orders advocating a more generous position whereby the wife would receive the L property unencumbered together with a lump sum. On any view of the evidence at the time of the application, the wife would receive a property settlement which would comfortably cover any legal fees outstanding.
In addition, it was the wife’s case that, at the conclusion of the matter, she would be seeking an order that the husband pay costs. On a number of occasions during the hearing there was discussion with Counsel about the likely effect of the husband’s non-disclosure of documents to which only he had access, his failure to make full and proper disclosure prior to, and in the course of, the evidence up to the conclusion of evidence on 8 November 2012, and the additional costs burden thereby caused to the wife.
In circumstances where the wife is in a position that her legal costs will be able to be met, whether from her property settlement or from a costs order, it is not appropriate to make the order she seeks.
In the event that the wife’s application is successful, she will retain the C home. The C property has an agreed value of $2,650,000. On the husband’s case the net asset pool is $4,747,839. On the husband’s case, the transfer of the C property would exhaust her entitlement and she would then be required to sell or mortgage that property to repay the interim sum. Had the wife abandoned her claim to the C property in the course of her interim application, the result may have been different.

THE HUSBAND’S EVIDENCE IN RELATION TO FINANCIAL TRANSACTIONS

The husband swore an affidavit on 28 September 2012 which contained the evidence he sought to rely upon at trial. On any reading of that affidavit little or no attempt had been made to explain, in any logical way, the sequence of sales and purchases and the consequent movement of funds throughout the period of the marriage and up to the hearing. Numerous of his assertions were proven to be simply wrong in cross-examination.
On 6 November 2012, the second day of the trial, the husband filed a further affidavit correcting numerous errors in his trial affidavit but making no clearer the evidence in relation to the movement of funds. In the course of the trial the husband also tendered and relied upon a statement produced by him, pursuant to orders made on 30 March 2012, of some 2 ½ pages and annexing 15 annexures comprising 237 pages of documents, unpaginated and untabulated.
In many instances, the statements made under oath by the husband in one of his documents contradicted statements made in another and in other instances his oral evidence contradicted the evidence in his documents. I do not propose to detail all of the inconsistencies but to give one instance. The husband in his trial affidavit swore that the healthcare buisness known as Business 1 had been purchased for $2,650,000 funded by $100,000 of his personal funds, $450,000 from the proceeds of sale of a previous healthcare business (“Business 6”) and $2,120,000 by way of loan from the ANZ Bank. Documents produced by the relevant professional body established that the purchase price of the health care business was $1,527,000 and that the purchase was funded entirely by way of finance provided by FF Ltd (“FF”). In cross-examination the husband conceded that he could not have provided $450,000 from the proceeds of sale of Business 6.
In the course of the cross-examination of the husband it was put to him on many occasions that it was open to him to have obtained documents to firstly substantiate his claims and secondly to make it clear, in the course of the proceedings, what had happened to various amounts of money. He conceded that it was a course which was open to him but not one which he chose to take. The husband’s evidence was contradicted time and time again by documents, leaving the Court in a position where his evidence cannot be accepted in relation to financial transactions unless it is corroborated by a document.
At the end of the husband’s cross-examination he had been unable to account for substantial sums of money including the proceeds of sale (whatever they may have been) of Business 6; and some $480,000 from the sale of Business 7.
In cross-examination he conceded that his assertion in his affidavit sworn 23 March 2012 that the purchase of the L property was funded in part by $500,000 from the sale of Business 1A was incorrect. He conceded that his assertion that that the purchase of the C property was funded in part by $1,100,000 from the sale of Business 1A was incorrect and he conceded that his assertion that the purchase of the M property was funded in part by $900,000 from the proceeds of sale of Business 1A was also incorrect. When asked what he had actually done with the proceeds of sale of Business 1A, the husband said that he had paid down whatever debts were owed by the business and deposited the balance into the accounts of Business 1, thus contradicting the evidence given in his trial affidavit that he had paid the balance into his personal accounts. This was yet another instance where the husband was asked whether he had made any attempt to find documents to establish the correct position and he had made no effort to do so.
The husband’s evidence was so unsatisfactory that at the conclusion of the evidence it was necessary for the trial to be adjourned in order for the wife to obtain a transcript and attempt to put together a schedule of documents which would explain the movement of funds.
Throughout the whole of the proceedings which commenced in 2010 there is no doubt that it was the husband who was in possession of the relevant documents or, if he did not have them, was in a position to obtain them. There was no attempt by the husband to comply with his obligation of full and frank disclosure. To the contrary it appeared that the husband had done everything he could to obfuscate.
The husband was no more frank in his Financial Statement which he swore in the proceedings. He did not disclose that the healthcare business provides him with a motor vehicle for which it pays $5,000 per month in leasing costs. That vehicle had been purchased a few days after the husband and the wife separated for just over $300,000, trading in a Mercedes motor vehicle upon which $60,000 remained outstanding. The leasing package for the new vehicle was approximately $400,000.
The husband failed to disclose the totality of the rent which he was receiving from various properties. As against the rent he disclosed in his Financial Statement of $1,200 per week, in cross-examination it was established that his actual receipts were approximately $1,775.
The husband failed to disclose that he had an offset account with Bankwest containing, he said in cross-examination, $40,000. A document was tendered demonstrating that on 26 September 2012, just two days before the husband swore his Financial Statement, that account contained $97,374.
The husband failed to disclose the rent received from the L property and has not at any time given evidence of the rental income from L property post separation. L property is unencumbered.
The husband also failed to disclose any distributions made to him by the family trust and it is impossible to know from his evidence whether those distributions had been taken into account in calculating his average weekly income. In addition there was evidence that there was a distribution by the family trust to the husband’s present wife of $36,665 which was not disclosed by her in her Financial Statement.
The husband asserted in his Financial Statement that he had paid the proceeds of sale of Business 5 in the sum of $225,000 to the Commissioner for Taxation but when confronted with the document showing the payment of $185,000 was unable to explain the discrepancy and indeed said he did not remember if he had checked the figures.
At Item 54 of the husband’s Financial Statement he listed as a liability “[Healthcare business] obligations – see attached – of $183,961.” There was no attachment. The document which was subsequently tendered did not explain how the figure was arrived at.
In all, the husband’s evidence as to financial matters could not be relied upon unless it was supported by a document which provided independent corroboration.

the evidence of the purchases and sales of businesses and real property.

Because the husband’s evidence on these matters is not reliable, it has been necessary to reconstruct the financial history of the parties from available documents. Documents have not been available in relation to every transaction. The wife obtained and annexed to her affidavit the records of the relevant professional body in relation to the purchases and sales of healthcare businesses from 1999 onward. The husband agreed that it was a requirement that any proposed sale and purchase of a healthcare business had to be the subject of approval by the professional body before completion of the transaction, and that it was a requirement that the source of funds for the purchase be disclosed.
On a number of occasions, the evidence of the husband as to the source of funds for the purchase of an interest in a healthcare business is different from that shown in the records, completed by the husband, produced by the professional body.
Where the records of the professional body are contradicted by other evidence, whether of the husband or his bank, I prefer the records of the professional body which are completed pursuant to statutory requirements.
Although the wife has complained throughout the proceedings and throughout the hearing that she only discovered various transactions after separation, I do not accept that assertion. In cross-examination she agreed that she had a general knowledge of the facts of sales and purchases but that she left the detailed arrangements to the husband. She said she would have preferred to be more involved in decision making. However, she agreed that she was never forced to sign documents, had every opportunity to have them explained to her by lawyers or, indeed, other members of her family who own similar businesses. She could have refused to participate in any of the transactions, including those in her name alone, but did not do so. In every other regard, she made a sincere effort to bring before the court accurate evidence.
The husband’s first healthcare business was Business 6. His unchallenged evidence was that he purchased the business in November 1996 for $300,000 using $105,000 from his savings and a loan of $195,000 from the National Australia Bank (NAB). The loan was over a period of seven years and repayable as to principal and interest. His evidence was that the business was sold in 1999 for $550,000. There was no evidence of the balance of the loan outstanding to the NAB and it was not suggested by the husband that he had made payments in excess of those required by the bank to dramatically reduce the amount outstanding.
In cross-examination he agreed that the sale price was, in fact, $505,000. On the evidence before me, I can conclude no more than an amount of less than $195,000 was paid to the NAB on sale (the husband conceded at least half of the amount would have been outstanding) and that the business would have had other liabilities which had to be satisfied from the proceeds of sale. There is no clear evidence about how the balance received by the husband (whatever it might have been) was disbursed. On that analysis, the husband may have received $400,000 from the sale of Business 6. He gave various explanations of what he did with the money. The most likely explanation is that it was used to reduce borrowings for healthcare businesses which had been purchased in the meantime.
On 11 February 1998 the husband and his brother purchased property in Suburb H for $295,000. Two mortgages were raised jointly by the brothers, totalling $273,000 to the NAB. The equity in the property was therefore about $22,000, the husband’s share was $11,000.
In 1998 the husband contracted to purchase Business 1A with Mr T for a total price of $1,250,000 plus stock of $70,000 ($1,320,000) with a completion date of 1 March 1998. The contract was in evidence. The husband’s share of the purchase price was $660,000. The husband owned 50 per cent of Business 1A. The husband’s evidence is that he provided $50,000 from the trading profits of Business 6 and borrowed $700,000 from NAB. That seems unlikely as the amount is $90,000, more than was required. I do not accept that any money from the sale of Business 6 was used to purchase Business 1A because Business 6 had not been sold at the time. However, I accept that it is likely that the proceeds of sale of Business 6 were applied to reduce debt from the purchase of Business 1A.
In 1999 the husband entered into a contract to purchase “off the plan” a property at F Street, G, for $630,000 and paid a deposit of $31,000 and stamp duty of $28,000. The wife conceded that she had no input into the purchase or sale of that property and conceded that the whole of the net proceeds should be treated as an initial contribution by the husband.
On 19 May 1999 the professional body received notice that the husband would purchase Business 1 for $1,527,000. The documents indicate that completion was to take place on 1 July 1999 and that finance in the sum of $1,527,000 would be provided by FF Ltd. Insofar as the husband seeks to rely on documents produced by the ANZ Bank to suggest otherwise, I prefer the evidence of the document provided to the professional body which the husband acknowledged was completed by him and provided pursuant to statutory requirements.
On 19 May 1999, the professional body received notice that the husband would purchase Business 5 for $1,123,000 with completion to take place on 1 July 1999. The full amount of the purchase price was to be financed by FF Ltd. Again, insofar as the husband seeks to rely on documents produced by the ANZ Bank to suggest otherwise, I prefer the evidence of the document provided to the professional body which the husband acknowledged was provided pursuant to statutory requirements.
On 13 July 1999, a further sum of $220,000 was secured against the H property to secure advances made by FF Pty Ltd for funds advanced in relation to Business 1, Business 5 and Business 1A. There is no evidence to demonstrate what this amount was used for. The husband said in oral evidence that it was not drawn down. He provided no document to corroborate his evidence.
On 28 August 2001 the husband completed the purchase, in his sole name, of the property at F Street, G, for $630,000 and the simultaneous sale of the property for $730,000. Thus the sum of $100,000 is to be regarded as a contribution by him.
The parties married and commenced to live together in 2000.
His assets at the date of the marriage were:
1.Savings of approximately $50,000 (that evidence was unchallenged)
2.Mercedes Benz vehicle
3.50 per cent interest in Business 1A purchased 1 March 1998 for $660,000 towards which his evidence is that he borrowed $700,000. I cannot conclude that the husband had any equity in Business 1A.
4.Business 6 purchased 2 September 1998 with initial equity of $105,000. Sold in November 1999 for $505,000. Net proceeds approximately $400,000. This sum may have been applied to reduce debt in which case it would be represented by equity in Business 1A.
5.Half interest in the property at Suburb H. His initial equity was $11,000 and the property was further encumbered to secure an advance of $220,000 from FF Ltd. The husband has not demonstrated that there was any substantial equity in the H property.
6.Sale proceeds of the property at F Street, G, of $100,000.
7.Business 1 purchased in May 1999 (settlement on 1 July 1999) for $1,527,000, the whole of which was borrowed. There is no evidence that the husband had any equity.
8.Business 5 purchased in May 1999 (settlement 1 July 1999) for $1,123,000, the whole of which was borrowed. There is no evidence that the husband had any equity.
The contention that the husband had no equity in the healthcare businesses is supported by the Financial Statements of the Elamin Discretionary Trust at 30 June 2000 which discloses debts in excess of $2,946,000 and a net asset position of $10.
Thus the assets of the husband at the commencement of the marriage were not more than $550,000 and perhaps less if the equity in the H property was negative.
The wife’s assets, as set out at Paragraph 7 of these reasons, were approximately $71,000 including superannuation plus her car.

during co-habitation

On 14 December 2001 the husband completed the purchase in his sole name of the property at Suburb L for $680,000. That purchase was funded by the sum of $68,000 from the sale of the wife’s property at P and by way of mortgage to Permanent Custodians Ltd for $544,000. The husband says the balance of the funds came from the sale of the G property. That seems likely. (It is to be remembered that he had earlier given evidence that the balance of the purchase money came from the sale of Business 1A, evidence he conceded in cross-examination was incorrect).That mortgage was refinanced on 18 February 2004 with a mortgage to ANZ of $544,000.
On 20 February 2002, the husband transferred his interest in the L property to his brother for $190,000, the transfer being stamped at $215,000 ad valorem indicating that the transfer was for less than valuation. There is no evidence to demonstrate what that sum was used for. There is no evidence from the husband about the manner in which that sum was used. It may have been paid to reduce the mortgage. His brother may have taken over the mortgage. If the husband received $190,000, he does not say what he did with it.
In January 2003, the husband purchased a 75 per cent interest in Business 7 for $2,133,000. The purchase was carried out in the wife’s name to circumvent rules preventing a healthcare professional from operating more than three healthcare businesses. The husband’s accountants say the husband borrowed $1,770,000 to complete the purchase. There is no documentary evidence to establish how the balance of $363,000 was funded. The husband says he provided it from profits from his businesses. That assertion is not disputed.

On 7 November 2003, the parties jointly purchased the M property for $1,100,000. To complete the purchase they entered into a mortgage to Permanent Custodians Ltd for $750,000. The balance required to complete the purchase was $350,000, plus stamp duty and legal fees. The husband’s first explanation of the source of funds was that the money came from the sale of Business 1A (which did not take place until 2005). By the adjourned hearing day, the husband provided evidence of borrowing $310,000 from Easy Choice Home Loans. The husband conceded that the wife provided $110,000 towards the purchase price.
On 18 February 2004, the mortgages over the L and M properties were refinanced with the ANZ for either $1,630,000 or $1,590,000. Cheques were drawn on settlement totalling $1,605,216.
On 14 July 2004, the husband and the wife invested $505,000 in Great Southern Plantation (“Gunns”). The whole amount was borrowed. In cross-examination the husband conceded that he had falsely represented to the finance provider that he owned shares valued at $541,000.
On 2 May 2005, the parties through the medium of a company, GI Pty Limited, borrowed $290,000 from ANZ. They both provided personal guarantees. The loan was to assist with the proposed purchase and renovation of a hospitality business. The husband, in cross-examination, gave evidence that those funds were used to buy the hospitality business. He provides no documents to substantiate that assertion.
On 3 May 2005, the husband entered into a contract to sell 33 per cent of Business 5 for $348,380 to Mr Y. On the same date, the husband sold 33 per cent of Business 1 to Mr Y for $740,620; the total paid by Mr Y was $1,089,000.
Mr Y borrowed $1,089,000 from ANZ. The whole of that amount was paid by the husband to reduce debt. The husband said in cross-examination that no funds were received from those transactions by the parties, other than the funds paid to reduce debt.
On 16 August 2005, 8 per cent of the wife’s interest in Business 7 was sold for $224,000. In his oral evidence the husband said that the sum was paid against the loan of $1,770,000, borrowed for the purchase of the interest in Business 7. There are no documents that support that assertion. Documents produced by ANZ show that on 14 June 2005, ANZ advanced $1,810,000 “To refinance [healthcare business] loans for [Business 7]”. ANZ records show, and the husband in Exhibit 25 (the index and commentary to his documentary chronology) asserts, that in October 2005 the debt of the husband and the wife to ANZ was $1,810,000. There was a further re-financing on 4 October 2005 when the debt owed by Business 7 was paid out in the sum of $2,680,250. The husband’s share of that debt was 75 per cent or $2,010,188. I accept that the husband used the advance of $1,810,000 together with the $224,000 from the sale of the 8 per cent interest to make that payment, leaving a balance of about $67,000 unaccounted for. I draw no inference from that discrepancy. There would have been costs of sale, borrowing costs and the like to be paid and there may have been a small surplus.
On 28 July 2005, the husband sold his 50 per cent share in Business 1A to Mr T for $1,900,000. Settlement appears to have taken place on about 4 October 2005. A total of $1,496,757.21 was paid into an account with ANZ in the name of Elamin Nominees Pty Limited styled “Business Mortgage Loan” account number ending …91, reducing the amount outstanding on that loan to $88,453.82 on 4 October 2005. (That is the same day the husband drew down the sum of $1,810,000 referred to above). How the remaining $403,243 was used is less clear. The husband at Item 22 of his documentary chronology (Exhibit 25) gives no explanation for the disbursement of the funds, save for the payment of the business mortgage loan. He provides no settlement statement. In cross-examination he said that the money was used to pay creditors. He provided no document to substantiate that claim. The onus was upon him to prove his assertion. In submissions, Senior Counsel for the husband relied upon the Financial Statements of Business 1A which established the husband’s share of the net liabilities of Business 1A (to be met equally by the partners) to be $340,545. On that basis it is likely that a substantial portion of the balance of the money from the sale of the interest in Business 1A was used to pay the outstanding debts.
On 20 September 2005 the sum of $1,141,738.98 was deposited into the …91 account . Three further sums were deposited on 4 October 2005:
$103,359.02
$119,750
$131,909.21
If all of those funds came from the sale of the 50 per cent interest in Business 1A then the balance of the refinancing loan to GI Pty Limited is not accounted for in that transaction.
On 4 October 2005 ANZ advanced funds to entities associated with the husband and wife as follows:
Elamin Nominees Pty Limited ATF Elamin Discretionary Trust $311,000
Elamin ATF Chatah Trust $1,810,000
I am satisfied that the sum of $1,810,000 was used in the refinancing of the Business 7 debts referred to in paragraph 94. How the $311,000 was applied is not clear.
On the same day, 4 October 2005, ANZ advanced $420,000 to GI Pty Limited. The purpose of that loan was to “restructure loans used to purchase commercial property situated at [RR]”. There is no mention in the husband’s affidavits sworn 23 March 2012 or 28 September 2012 of the purchase of this property. It was a condition of the advance that the funds not be used for any other purpose. I do not know when the property was purchased or for what amount. The only mention I can find in the voluminous documents is at Tab 48 of Exhibit 25 which is a memorandum of the ANZ dated 22 September 2009 referring to the sale of the RR property settling on 25 September 2009. The memo states “Net sale proceeds will be applied to reduce existing business RIL to $490K.”
I infer that this loan refinanced the earlier facility of $290,000 advanced on 2 May 2005 and increased the borrowing by $130,000. At Tab 22 of Exhibit 25 is a Bank Statement showing a deposit on 4 October 2005 of $131,909.21 into the …91 account of Elamin Nominees Pty Ltd ATF Elamin Discretionary Trust. However, the husband in cross-examination gave evidence that the deposit of $131,909.21 came from the proceeds of sale of the interest in Business 1A. I am prepared to infer that the whole of the sum of $420,000 was used for the purchase of the RR property.
In November 2005 the mortgage to Easy Choice Home Loans in the sum of $311,000 secured over the M property and the L property was refinanced with ANZ and a “business loan” account was established in the name of Elamin Nominees P/L ATF Elamin Discretionary Trust. That account number ends with …38.
In April 2006, the loan of $1,810,000 was refinanced with ANZ extending a new facility in the sum of $1,782,000, secured by mortgage over the M property, personal guarantees of the parties and a charge over the assets of the trusts.
At the same time they refinanced the loan of $1,600,000 secured over the L property and guaranteed by GI Pty Limited. The total borrowing was therefore $3,382,000. I am satisfied that the whole of that amount was applied to refinance existing debt.
On 5 April 2006, ANZ advanced a further sum of $250,000 “To establish [second hospitality business] in …” noting that the total advanced was then $661,000. ANZ had previously advanced $290,000 on 2 May 2005 for this venture. It is likely that the loan of $290,000 was refinanced as part of that transaction. $250,000 was deposited to an account ending …57. The husband in his affidavit sworn 23 March 2012 says that the hospitality franchises were purchased for $550,000. He annexes no documents to prove the price or the date of the purchase. He says at page 6 of that affidavit that “The purchase of this business was funded by a loan from Westpac”. That evidence would seem to be wrong.
Doing the best I can with the evidence, I am prepared to infer that the first hospitality business was purchased for $290,000 and the second hospitality business was purchased for $275,455 as the husband asserts, that being the sum debited to the …57 account on 12 April 2006. The difference between the loan and the purchase price was funded by drawing down on the …35 account.
Ultimately, the hospitality businesses failed and the parties lost money on their disposal.
By Transfer stamped on 18 August 2006, the parties sold the M property for $1,170,000 (a shortfall of $460,000 on the mortgage).
Also on 18 August 2006, the parties stamped a transfer in relation to their joint purchase of the C property for $2,725,000. The contract provided for a delayed settlement. The transfer is annexed to the affidavit of the wife sworn 25 September 2012.
Also annexed to the wife’s affidavit is a mortgage document dated 10 April 2006, demonstrating that the parties mortgaged the C property to the ANZ for $3,553,000. How the parties were able to raise a mortgage on a property they did not yet own is unexplained. That sum was sufficient to meet the shortfall in the M mortgage and leave the parties with about $368,000 after payment of the purchase price of the C property. The wife in her affidavit says that she does not know how the surplus funds were used. The husband relies on documents at Tab 26 of Exhibit 25 which do not assist. There is no evidence about the use of those funds.
At Tab 38 of Exhibit 25 the husband annexes a memorandum from ANZ dated 28 March 2007 which seems to indicate that the M property sale was to settle in August 2007 and that the ANZ proposed to allow the parties to apply $1,000,000 to the purchase of the C property (noting that the deposit of $355,000 had been met from the husband’s funds).
In March 2007, the husband sold the remaining 67 per cent of Business 7, receiving on settlement $1,948,851. The loan then outstanding to ANZ of $1,777,376 was paid out and a balance of $171,475 was applied to reduce debt.
On 15 August 2007 the …83 loan was extended by $247,900 the balance owed thus being $555,968. There is no evidence from the husband to explain how these funds were applied.
On 11 June 2008, the husband and Mr Y purchased Business 4 for $705,000. The husband’s share of the purchase price would have been $352,250.
On 15 August 2008 the …83 loan was repaid. There is no evidence to explain how that was achieved. Documents at Tab 44 of Exhibit 25 establish that on 15 August 2008 there was a refinancing of debt by an advance of $3,870,649. From this amount $2,968,395.63 was paid to ANZ. I infer that the funds to discharge the …83 loan came from the refinance. The husband and Mr Y received $131,231 which I infer from the ANZ memorandum dated 18 August 2008 was paid into their partnership account.
On 26 May 2009 the parties separated. The husband remained in the C property and continued to receive the rent from the L property and the income of the healthcare businesses. He also continued to service their borrowings.
On 25 November 2009 the husband executed documents to secure an advance of $1,591,667 from Bankwest.
On 30 November 2009 the husband sold 1/6^th of his interest in Business 1 and Business 5 to Mr Y for $850,000 of which the whole amount went to retire debt, including a payment of $320,433 to “[SGP] Loan”.
Also on 4 March 2010 the husband borrowed $2,066,333 from Bankwest. There is no evidence about the destination of that sum. On the same day there was a second advance from Bankwest of $1,591,667, referred to above. I infer that this facility replaced or renewed the facility in the same amount advanced 25 November 2009. The money was paid into an account in the name of the husband at Bankwest and disbursed as to $86,827 to the Australian Taxation Office (“ATO”), $1,378,600 to Z Trust, $100,000 to Mr Y and the balance to various creditors including the husband’s accountants.
On 12 December 2010 the husband purchased one half share (with Mr and Mrs Y) in a property at A Street, Suburb N, for a total of $580,000. A Bank Statement annexed to the husband’s statement indicates that $590,000 was borrowed from Bankwest and a sum of $24,841 was paid from that advance to Business 1. I speculate that Business 1 advanced money for a deposit.
On 21 January 2011, the husband and Mr Y sold Business 4 for $1,072,580.
The husband’s share of $536,290 was used to pay creditors including a payment to “Bankwest [Healthcare] loan” of $402,053, payment of arrears of rent and trade creditors.
On 3 May 2011, the husband purchased one half share (with Mr and Mrs Y) in two properties at Suburb E for $630,000. The sum of $630,000 was borrowed from Bankwest and again it seems likely that Business 1 advanced, and was repaid, the deposit.
On 12 September 2011, the husband and Mr Y sold the approval number (the right to supply healthcare benefits) of Business 5 for $500,000 plus GST and closed Business 5. The husband’s share was used to pay creditors including the ATO. Bank statements for Business 5 annexed to the husband’s statement indicate that as at 12 December 2011 there remained in the bank $539,498 and that on 12 December 2011 there was paid to the husband the sum of $200,000 from that account and, presumably, the same amount to Mr Y. A further $10,000 was drawn by each of them on 19 December 2011 and $70,000 was transferred on 20 December 2011 to an unknown destination, but presumably to an account in the name of AA Pty Ltd which received $70,000 on that day. The same sum was withdrawn from the account of AA Pty Ltd on the same day.
On 29 November 2011 the husband purchased the property at F Street, Suburb E and a separately titled car space for $540,000. The whole of that sum was borrowed from Bankwest.
On 9 January 2012 Bankwest offered to lend to the husband and Mr Y the sum of $400,000 to “refinance partner loans in ([Business 1]) and finance acquisition of stock from ([Business 5]) …”. The documents do not indicate whether that advance was taken up.
On 18 January 2012 the Bankwest facility for $1,591,667 was again renewed but the limit was decreased to $1,391,667.

the wife’s assertions that funds are not accounted for

I am far from satisfied that the husband has either made a real effort to account for the flow of funds relating to the purchase and sale of the various entities, or that he has given a proper accounting. He at all times had solicitors acting for him in the proceedings. He had accountants who had advised him over a long period and who provided the Accountants’ Schedule which is referred to earlier in these reasons. He had commercial solicitors who acted on the various sales and purchases. He had access to bank records. There is no demonstrated reason why the husband could not have made proper disclosure. That he did not do so can only be as a result of a deliberate choice on his part.
The husband, if he did not understand his obligations before, was aware from 2 August 2010 when specific orders were made by Registrar Campbell to provide documents to the wife. Further orders in relation to disclosure were made on 23 May 2011 and again on 25 January 2012.
Orders 8 to 11 inclusive made on 30 March 2012, required the husband to make a proper disclosure in the clearest possible terms. Those Orders are set out below:
8.That the Husband shall within 48 hours of these Orders provide to the Wife’s solicitors, in writing, a Statement setting out all transactions in relation to any [healthcare] or other business interest sold or otherwise disposed of by the Husband including but not limited to [Business 1], [Business 4] and [Business 5] (whether a partial interest or otherwise) from 1 January 2009 to date including the following:
8.1The dates of each sale/transfer (including partial transfer);
8.2Sale price shown on the contract for sale for each sale/transfer (including partial transfer), including provision of each contract for sale from 1 January 2009 to date;
8.3Details of the total amounts received by the Husband either solely or in his capacity as an officeholder in relation to each sale/ transfer, including provision of all relevant source documents including but not limited to settlement sheets (showing total amounts received, including any adjustments) and bank statements showing all amounts received by the Husband from 1 January 2009 to date;
8.4Full particulars of how the funds were applied including provision of all relevant source documents including but not limited to bank statements showing each transfer of money relating to the proceeds of sale and full particulars of amounts currently held by the Husband being proceeds of sale from the Husband’s [healthcare] or other business interests; and
8.5Particulars of funds remaining in the Husband’s possession and/or control which relate to the sale of any of the Husband’s [healthcare] interests from 1 January 2009 to date, together with source documents evidencing the amounts held and account details showing where the funds are held.
That there be compliance within 14 days of order 8 above.
9.That the Husband shall within 48 hours of these Orders provide to the Wife’s solicitors, in writing, a Statement setting out full details of each time the Husband either solely or in his capacity as an officeholder has refinanced an existing loan in his name (whether in his sole name or jointly with any other person) or in the name of an entity in which the Husband has an interest, including the date of each refinance, details of the financial institution/lender for each refinance, purpose of each refinance, total amounts received by way of refinance, and the security used for each refinance and how funds were applied by the Husband.
10.That the Husband reply to the Wife’s request for disclosure by service of a list of documents dated 15 February 2012 pursuant to Rule 13.20 of the Family Law Rules within seven (7) days of the date of these Orders.
11.That the Husband shall within seven (7) days from the date of these Orders file and serve an Undertaking as to disclosure in accordance with Rule 13.15.

I am satisfied that it was within the husband’s power to make a full and proper disclosure and that his failure to do so is deliberate.
However, I am not in a position, as a consequence, to make a positive finding that the husband has assets which are undisclosed.
In Weir & Weir (1993) FLC 92-338 the Full Court set out the approach to be taken in cases of non-disclosure:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759, and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It is the wife’s position that the Court should find that the husband has not made a full disclosure of his financial affairs and that, as a consequence, the exercise of discretion should be “not unduly cautious” in her favour.
Senior Counsel for the husband submits that, unless the Court is able to conclude that there is an undisclosed pool of assets in his hands, then the conditions for the “not unduly cautious” exercise of discretion have not been met.

In Gould & Gould [2007] FLC 93-333 (at Para 51), the Full Court said at
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.
In the present case, although I am satisfied that the husband has wilfully failed to fully and frankly disclose his historical financial dealings, I cannot conclude that the asset pool is greater than has been demonstrated. For example, tax must have been paid both on income received and on the disposition of business and real estate assets. When businesses were sold, the debts of those businesses had to be paid out. In those circumstances, I do not propose to engage in the “not unduly cautious” exercise of discretion.
The consequences of the husband’s failure to make proper disclosure can be dealt with in another context.

the valuation of the healthcare business

The Single Expert, Mr S of DP, valued the business known as Business 1 and the husband’s half share in that business. In coming to his valuation, Mr S relied on actual Financial Statements for the 2011 and 2012 tax years and projected figures for the 2013 tax year.
When Mr S was cross-examined in November 2012, the actual financial results for the 2013 tax year were available and sales were $142,834 greater than the projections assumed in the valuation. Mr S properly conceded that the value of Business 1 would be more than his original figure and adjusted his valuation by $257,895. Thus, the value of the whole business was $6,478,895 and the value of the husband’s half share is $3,239,448.
In 2013 the husband’s accountants produced records of actual sales for the nine month period to 31 March 2013. Counsel for the wife submits that the actual sales figures for nine months should be annualised and that the result is a far larger amount than the sales for year ended 30 June 2013. Counsel seeks to adopt Mr S’s methodology and then recast his valuation to arrive at a value as at 30 June 2013 of $4,538,826 for the husband’s half interest.
The difficulty in adopting that submission arises out of Mr S’s evidence in coming to the greater figure referred to above. His adjusted figure assumed that the overheads of the business did not change. I cannot assume that, in generating a larger volume of sales and sales revenue, the business did not also incur greater overheads and it is not safe to adopt the wife’s calculation.
I find the value of the husband’s interest in Business 1 to be $3,239,448.
I do not ignore the fact that the results for the year ended 30 June 2013 would appear to be more profitable than in 2012 but will take that into account when considering the section 75(2) adjustment.

the asset pool

At the commencement of their oral submissions, Counsel tendered an agreed Balance Sheet setting out the asset pool for which they each contended. The document is reproduced below with the inclusion of some concessions made in the course of submissions:

Ownership Description Wife's Value Husband's Value

1 Joint [Suburb C property] 2,650,000 2,650,000

2 Husband [Suburb L property] 850,000 850,000

3 Husband [Suburb N property] - 50% 290,000 290,000

4 Husband [Lot 1 and Lot3, W Street, Suburb E] - 50% 315,000 315,000

5 Husband [F Street, Suburb E] - 100% 540,000 540,000

6 Husband [Business 1] - 50% 4,573,826 3,110,500

7 Husband Trade Debtors – [Business 1] – 50% 64,494 64,494

8 Husband [Elamin] Discretionary Trust & [Q] Trust, Trading as [Business 1] Bankwest BSB … accounts …04 and …46 - 50% 40,347 40,347

9 Husband [Elamin] Discretionary Trust & [Q] Trust, Trading as [Business 1] - Bankwest Account …38- 50% 6,794 6,794

10 Husband ANZ Account in the name of [Elamin] Nominees BSB … Account …57 1,095 1,095

11 Husband Shares in [Elamin] Nominees Pty Limited
ACN …79
Registered 09.02.98
Directors: Husband
Secretary: Husband
Shareholders: Husband
Assets include: 0 0

12 Husband Shares in [Business 3]
ACN …29
Registered 21.03.02
Directors: Husband
Secretary: Husband
Shareholders: Husband 0 0

13 Husband Shares in [AA] Pty Limited
ACN …30
Registered 19.08.05
Directors: [Mr Y]
Secretary: Husband
Shareholders: [Mr Y] as to 500 ordinary beneficially held fully paid shares
Husband as to 500 ordinary beneficially held fully paid shares 0 0

14 Husband [Elamin] Discretionary Trust
Deed: 09.02.98 Varied 24.08.09 (New Trustee)
Settlor: [Mr WK]
Appointor: Husband
Trustee: [AA] Pty Ltd
Beneficiaries: Husband, his family, companies, trusts etc -5,475 -5,475

15 [Chatah] Discretionary Trust 0 0

16 Husband Furniture and personal items 50,000 50,000

17 Wife Furniture and personal items 0 25,000

18 Wife Jewellery 15,000 15,000

19 Husband CBA Bank Account … 391 24,657 24,657

20 Husband BankWest Lite Direct Account …641 55,054 55,054

21 Husband [Elamin] Trade Cash Investment Account BSB … number …413 399 399

22 Husband Funds in Pearson Family Lawyers' Trust Account 1,408 1,408

23 Wife CBA Streamline Account …80 9,619 9,619

24 Husband Audi … registration … 0 0

25 Husband BMW registration … 101,500 101,500

26 Husband Nissan … registration … 31,050 31,050

27 Husband Boat – … 42,500 42,500

28 Wife …Mazda … motor vehicle registration … 8,100 8,100

29 Husband Beneficial Loan acc In Trust 158,778 158,778

30 Funds not disclosed from husband's sale of [Business 1A] and [Business 7] amongst other funds not disclosed 758,261 0

31 Total 10,615,873 8,281,716

33 Wife Funds expended from CBA Streamline Account …80 117,312 120,814

34 Wife Wife's paid legal fees less funds expended from CBA Streamline Account …80 at date of separation (above)

35 Husband Husband's paid legal fees

36 Total 117,312 120,814

38 Joint Mortgage to ANZ Bank secured on [C] property -447,127 -447,127

39 Husband Rent payable to Department of Primary Industries re [C]property 0 0

40 Husband Land Tax payable to OSR 0 0

41 Husband Mortgage to Bankwest secured on [L] property NK 0

42 Husband Mortgage to Bankwest secured on [Lot 1 and Lot 3, … W Street, Suburb E] -315,000 -315,000

43 Husband Mortgage to Bankwest secured on [Suburb N property] -290,000 -290,000

44 Husband Mortgage to Bankwest secured on [F Street, Suburb E] -540,000 -540,000

45 Husband Capital gains tax on sale of [L] property & [healthcare businesses] 0 -531,316

46 Husband Bankwest Commercial Facility - 50% -1,391,667 -1,391,667

47 Husband Bankwest partnership … loan Bankwest Commercial Advance Facility account …32 - 50% -145,000 -145,000

48 Husband BMW registration … -101,500 -101,500

49 Husband Volkswagen Financial services (in relation to the Audi …) 0 0

50 Husband Hire Purchase Liability - Esanda (Business 2) - 50% -50,526 -50,526

51 Husband Hire Purchase Liability - Nissan Finance (Mazda) - 50% -7,559 -7,559

52 Husband Hire Purchase Liability - Nissan Finance -33,507 -33,507

53 Husband Trade Creditors – [Business 1] - 50% -208,921 -208,921

54 Husband Trade Creditors and other Creditors for [Elamin] Discretionary Trust and [Q] Trust (…) - 50% 0 0

55 Husband Accrued expenses for [Elamin] Discretionary Trust and [Q] Trust (…) - 50% -7,653 -7,653

56 Husband Boat lease 0 0

57 Husband CBA Mastercard Diamond number …10 -335 -335

58 Husband CBA Platinum Rewards Card, account number …12 0 0

59 Husband American Express card -900 -900

60 Wife CBA Mastercard -8,979 -87

61 Wife Personal loan CBA #...00 -50,150

62 Wife Personal loan CBA #...04 -29,788

63 Wife Personal loan from family -28,000

64 Husband Owed legal fees 0 0

65 Total -3,656,612 -4,071,098

67 Wife First State Super 51,545 51,545

68 Total 51,545 51,545

The wife contended for a net asset pool of approximately $7,000,000 and the husband for an asset pool of approximately $4,500,000.

It is readily apparent that the areas of dispute are few and they will be dealt with serially.
Item 6 – Business 1
For the reasons set out at paragraphs 138 to 143, I find that the value of the husband’s interest is $3,239,448.
Item 17 – The wife’s furniture
There is no evidence to support the husband’s assertion and this item will be deleted.
Item 30 – Funds not disclosed from husband’s sale of Business 1A and Business 7
For the reasons expressed in paragraphs 130 to 137 this item will not be included as an asset in the balance sheet.
Item 33 – Pre-separation funds used to pay the wife’s legal fees
Both parties agree that this sum should be brought to account as an asset in the hands of the wife. The amount in the wife’s account at the date of separation was $117,312. The husband contends for an amount accrued some six months later. The appropriate amount is the amount at separation.
Item 45 – Capital gains tax liability (CGT)
The husband asserts that the CGT on the sale of the L property will be $35,889. The wife does not dispute the accuracy of that figure. The husband asserts that the CGT liability on the sale of Business 1 will be $495,427. There is no evidence to support that calculation. The wife does not accept it as accurate. Moreover, there is no evidence that the husband will sell either the L property or the healthcare business. The L property is unencumbered. The husband has shown a great facility for borrowing from financial institutions in the past and may well decide to borrow against the L property for the purpose of satisfying any cash payment which he is ordered to make. I cannot assume he will sell the L property and he gave no evidence to that effect. If he needed to sell real property to satisfy an order, he has available the C property which, being his principal place of residence, would not attract CGT on sale. Accordingly, the claim for CGT liability will not be allowed.
Items 57 to 59 – Husband’s credit card debts
It was conceded that these debts were incurred after separation and they will therefore not be included as a liability.
Items 60 to 63 – Wife’s debts
The wife’s credit card debts were incurred after separation and will not be included in the Balance Sheet. The personal loans taken out by the wife to fund legal fees which total $107,938 will not be allowed as liabilities on the Balance Sheet but will be taken into account in balancing the section 75(2) factors. The husband has paid his legal fees from post separation earnings and they will not be added back. The portion of the wife’s paid legal fees which was paid from pre-separation savings has been included as an asset at Item 33. The wife’s earnings after separation were substantially less than the husband’s and, although she, too, will pay most of her legal fees from her own funds, it is appropriate to recognise that she has to repay the funds she has borrowed and will not be in the same position as the husband who has no corresponding debt.

I therefore find that the assets and liabilities of the parties are:

Ownership	Description	Value
ASSETS
1	Joint	C property	2,650,000
2	Husband	L property	850,000
3	Husband	N property - 50%	290,000
4	Husband	Lots 1 and 3 Suburb E - 50%	315,000
5	Husband	F Street, Suburb E - 100%	540,000
6	Husband	Business 1 - 50%	3,239,448
7	Husband	Trade Debtors – Business 1 – 50%	64,494
8	Husband	Elamin Discretionary Trust & Q Trust, Trading as Business 1 Bankwest BSB … accounts …04 and …46 - 50%	40,347
9	Husband	Elamin Discretionary Trust & Q Trust, Trading as Business 1 - Bankwest Account …38- 50%	6,794
10	Husband	ANZ Account in the name of Elamin Nominees BSB … Account …57	1,095
11	Husband	Elamin Discretionary Trust	-5,475
12	Chatah Discretionary Trust	0
13	Husband	Furniture and personal items	50,000
14	Wife	Furniture and personal items	0
15	Wife	Jewellery	15,000
16	Husband	CBA Bank Account …91	24,657
17	Husband	BankWest Lite Direct Account …41	55,054
18	Husband	Elamin Trade Cash Investment Account BSB … number …13	399
19	Husband	Funds in Pearson Family Lawyers' Trust Account	1,408
20	Wife	CBA Streamline Account …80	9,619
21	Husband	Audi … registration …	0
22	Husband	BMW registration …	101,500
23	Husband	Nissan … registration …	31,050
24	Husband	Boat …	42,500
25	Wife	2004 Mazda motor vehicle registration …	8,100
26	Husband	Beneficial Loan acc In Trust	158,778
27	Wife	Funds from pre-separation savings used to pay wife’s legal fees	117,312
28	Total	8,607,080
LIABILITIES
29	Joint	Mortgage to ANZ Bank secured on C property	-447,127
30	Husband	Mortgage to Bankwest secured on Lot 1 and 3 Suburb E	-315,000
31	Husband	Mortgage to Bankwest secured on N property	-290,000
32	Husband	Mortgage to Bankwest secured on F Street Suburb E	-540,000
33	Husband	Bankwest Commercial Facility - 50%	-1,391,667
34	Husband	Bankwest partnership healthcare business loan Bankwest Commercial Advance Facility account …32 - 50%	-145,000
35	Husband	BMW registration …	-101,500
36	Husband	Hire Purchase Liability - Esanda (Business 2) - 50%	-50,526
37	Husband	Hire Purchase Liability - Nissan Finance (Mazda) - 50%	-7,559
38	Husband	Hire Purchase Liability - Nissan Finance	-33,507
39	Husband	Trade Creditors – Business 1 - 50%	-208,921
40	Husband	Accrued expenses for Elamin Discretionary Trust and Q Trust (…) - 50%	-7,653
41	Total liabilities	3,538,460
41	Total net assets	5,068,620
SUPERANNUATION
42	Wife	First State Super	51,545

section 72

The substantial assets of the parties, with exception of the C property, are held in entities controlled by the husband, or by the husband personally. The healthcare business, which is the most valuable asset, had its genesis in the businesses bought and sold throughout the marriage, starting from a base at marriage where, as I have found, the businesses then held, had no net equity or equity of approximately $400,000.
The wife made substantial contributions to the increase in the value of the healthcare businesses, including working in the businesses as a healthcare professional and she was the legal owner of the parties’ interest in one of them. That interest was sold for a substantial amount.
The C property is held by the parties’ as joint tenants.
Other than her interest in the C property, the wife has modest personal property.
It is necessary to make an order altering the interests of the parties in their various assets in order to do justice and equity to the wife and both parties ask the Court to do so.

contribution

I have found the husband’s initial contributions to be not more, and possibly less, than $550,000 and the wife’s initial contribution to be in the region of $71,000.
In a pool of approximately $5,000,000 the disparity between the husband’s initial contribution and that of the wife, approximately $480,000, has to be considered in the context of a marriage of nine and a half years.
The husband contends that he should be awarded 65 per cent of the parties’ assets. In this asset pool, that adjustment, representing a 30 per cent disparity between the parties, would be $1,500,000 and excessive.
Both the healthcare business interests held by the husband and the real property held by the wife were sold during the marriage for more than the value at marriage but I attribute that increase in value to the efforts of both of them.
During the marriage, both parties worked in the businesses and the wife studied and graduated. They both applied themselves diligently to their joint enterprises and I do not accept the contention of the husband that his contributions during co-habitation exceed the wife’s.
During the marriage, the wife was able to study and earn additional professional qualifications because she was supported by the husband from their joint investments and business enterprises. Thus, he contributed to her current earning capacity. However, there is no evidence that her additional professional qualification has increased her earning capacity over that which she might receive working as a healthcare professional either as an employee or in her own business.
After separation, the husband continued to live in the C property, received the entire income from the healthcare business and received the rent from the L property. He was able to purchase the investment properties in Suburb E because he had control of the income of the parties’ business assets.
The wife submits that the rent from the L property can be assumed to be $550 per week or a total since separation in excess of $100,000. There is, of course, no evidence to support that contention but the rent for the L property is not inconsequential (and the husband chose not to give any evidence as to the amount) and the income from the business was significant.
The husband made greater contributions after separation in managing all of the parties’ joint assets but that contribution is more than offset by his having retained, between separation in 2009 and trial, all of the assets, and the earnings, for his own benefit. The husband deposes to earnings, in the financial year ended 30 June 2013, in excess of $450,000, all of which is derived from the business and the investment properties and which does not include the rent from the L property.
Balancing the husband’s greater initial contribution against his retention of the substantial assets and income of the marriage from separation in May 2009, a period of four years, I find that their contributions are equal.

section 75(2) factors

The husband will retain the healthcare business which is valued by the single expert at $3,239,448. From that business he derives an income which, in his Financial Statement, he deposes to be $8,748 per week. Because of the uncertainty in his evidence it cannot be assumed that his income is not in fact greater, particularly since he makes distributions from the family trust to his current wife.
The husband contends that, if he sells the business at some future time, he would incur a liability for CGT. However, there is no evidence as to the amount and there is no evidence that the husband will dispose of the business in the foreseeable future. Similarly, there is no evidence that the husband will dispose of the L property in the foreseeable future and, having regard to his ability in the past to borrow, it is more likely than not that he will borrow against the L property to meet any order in favour of the wife.
The husband gave evidence that his income will decrease because of the “coming off patent” of some products. It was his evidence that when a product is sold the business receives the cost price of the product plus 10 per cent. If the cost price of the generic product is less, then the margin is a lesser figure than if the higher cost price of the patented product is incurred. He was unable to give any estimate of the effect on profit of the release of generic products except to say he believes profit will be less. I cannot find, on the basis of this evidence, that his income will be so reduced as to make it comparable with that of the wife, but the asserted reduction in future income is a factor to be taken into account.

Balanced against that evidence is the fact that in the period from 1 July 2012 until 31 March 2013 the sales results and gross returns of the business were higher than in the corresponding period in 2012. Thus it may be that the increase in sales will offset the decrease in profit from the effect of the generic products. It is not possible to predict.
The husband will also retain investment properties in Suburb N and Suburb E from which he derives an income although those properties are subject to mortgages.
The husband supports his present wife and will support their child. His present wife does not work but receives an income from the family trust, allowing a tax saving for the husband.
The husband’s earning capacity is both significantly greater than the wife’s and, for the reasons set out below, more certain.
The wife commenced studying a professional degree at University in 1998. She deferred her studies for a year because her grandmother was ill and she visited her grandmother in Lebanon. In 2000 she resumed her studies and the parties married. In 2001 she deferred her studies again and worked in the healthcare businesses. She resumed her studies and completed her degree in 2004. Since 2004 she has been working towards her specialist qualifications.
Her studies were interrupted when she travelled to Lebanon in December 2009 and remained there until mid March 2010 and she again travelled to Lebanon in October 2010 and arrived back in Australia in early January 2011. It was her evidence that on each of those occasions she felt unable to continue with her studies.
The wife, although she is a qualified healthcare professional, is in a course of training to become a specialist medical professional. She commenced working as a second year registrar in January 2011 but has deferred her examinations which were to have taken place in July 2012 for a year as she felt she was unable to complete her examinations and at the same time attend to the proceedings before the court. She has completed three out of the six years of her required specialist training and will need to complete another three years and pass an examination in order to become a specialist medical professional.
She remains a qualified healthcare professional and has renewed her registration. There is however, no evidence about how much money the wife is likely to earn if she worked as a healthcare professional and that is not her chosen profession.
It was the wife’s case that her ability to complete her studies and to work effectively is affected by depression. Before the Court Dr D, a consultant psychiatrist gave evidence as a single expert in relation to the wife’s prognosis. Dr D found that the wife had a significant history of depression and he diagnosed her as suffering from an adjustment disorder with depressed mood. In his oral evidence, Dr D said that the wife had displayed symptoms for ten years or more and said that the persistence of her symptoms suggested that she was predisposed to a worsening of her condition if she is subjected to further stressors.
In his report Dr D opined that the wife’s ability to undertake fulltime employment was no longer effected by her diagnosed condition but in his oral evidence he qualified that statement. Ultimately, his evidence was that whilst he is hopeful that the wife will have the capacity to continue to work and to achieve her goals in her chosen profession, there is a risk that she may from time to time be unable to work. Dr D said that the chances of the wife continuing to work without interruption were “not good prognostically” and that there is a risk that she may not even be able to continue with her studies.
The wife will have to repay debt of $107,938 being borrowings to meet legal fees in circumstances where she could not afford, as the husband could, to pay her legal fees as they fell due from income.
Her income is presently $3,451 per week, supplemented occasionally by fees she is paid for assisting specialists. There is no indication what income she is likely to receive if and when she qualifies in her specialty and no guarantee that she will complete that qualification.
Part of the assets she will retain are in superannuation which will not be available to her for many years.
Taking all of these matters into account, an adjustment in favour of the wife of 5 per cent for section 75(2) factors is appropriate. In addition, she should retain her superannuation.
The orders will provide for the wife to receive 55 per cent of the net assets plus her superannuation entitlements.

how should the orders be structured?

The wife seeks the transfer to her of the C property. She has not lived there since 2009 and it is the home of the husband, his present wife and their child. She advances no cogent argument to support her contention that she ought to reside in the property. I do not propose to make that order.
The husband will have the C and L properties and the business available as security for the necessary borrowing. The husband’s capacity and ability to borrow has been well demonstrated.
The orders will provide for the wife to receive a sum certain. Having regard to the quantum that the husband will have to raise, he will be allowed three months to pay.
The wife is entitled to total assets of $2,787,741. The Balance Sheet shows that she has assets in her possession with a value of $135,031. Therefore, the amount to be paid to her by the husband is $2,652,710.
Orders will be made accordingly.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 July 2013.

Associate:

Date: 25 July 2013

[2013] FamCA 547

25 July 2013

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Expert Evidence

Remedies

Procedural Fairness

Ownership	Description	Wife's Value	Husband's Value
1	Joint	[Suburb C property]	2,650,000	2,650,000
2		Husband	[Suburb L property]	850,000	850,000
3		Husband	[Suburb N property] - 50%	290,000	290,000
4		Husband	[Lot 1 and Lot3, W Street, Suburb E] - 50%	315,000	315,000
5		Husband	[F Street, Suburb E] - 100%	540,000	540,000
6		Husband	[Business 1] - 50%	4,573,826	3,110,500
7		Husband	Trade Debtors – [Business 1] – 50%	64,494	64,494
8		Husband	[Elamin] Discretionary Trust & [Q] Trust, Trading as [Business 1] Bankwest BSB … accounts …04 and …46 - 50%	40,347	40,347
9		Husband	[Elamin] Discretionary Trust & [Q] Trust, Trading as [Business 1] - Bankwest Account …38- 50%	6,794	6,794
10		Husband	ANZ Account in the name of [Elamin] Nominees BSB … Account …57	1,095	1,095
11		Husband	Shares in [Elamin] Nominees Pty Limited ACN …79 Registered 09.02.98 Directors: Husband Secretary: Husband Shareholders: Husband Assets include:	0	0
12		Husband	Shares in [Business 3] ACN …29 Registered 21.03.02 Directors: Husband Secretary: Husband Shareholders: Husband	0	0
13		Husband	Shares in [AA] Pty Limited ACN …30 Registered 19.08.05 Directors: [Mr Y] Secretary: Husband Shareholders: [Mr Y] as to 500 ordinary beneficially held fully paid shares Husband as to 500 ordinary beneficially held fully paid shares	0	0
14		Husband	[Elamin] Discretionary Trust Deed: 09.02.98 Varied 24.08.09 (New Trustee) Settlor: [Mr WK] Appointor: Husband Trustee: [AA] Pty Ltd Beneficiaries: Husband, his family, companies, trusts etc	-5,475	-5,475
15		[Chatah] Discretionary Trust	0	0
16		Husband	Furniture and personal items	50,000	50,000
17		Wife	Furniture and personal items	0	25,000
18		Wife	Jewellery	15,000	15,000
19		Husband	CBA Bank Account … 391	24,657	24,657
20		Husband	BankWest Lite Direct Account …641	55,054	55,054
21		Husband	[Elamin] Trade Cash Investment Account BSB … number …413	399	399
22		Husband	Funds in Pearson Family Lawyers' Trust Account	1,408	1,408
23		Wife	CBA Streamline Account …80	9,619	9,619
24		Husband	Audi … registration …	0	0
25		Husband	BMW registration …	101,500	101,500
26		Husband	Nissan … registration …	31,050	31,050
27		Husband	Boat – …	42,500	42,500
28		Wife	…Mazda … motor vehicle registration …	8,100	8,100
29		Husband	Beneficial Loan acc In Trust	158,778	158,778
30		Funds not disclosed from husband's sale of [Business 1A] and [Business 7] amongst other funds not disclosed	758,261	0
31		Total	10,615,873	8,281,716
33		Wife	Funds expended from CBA Streamline Account …80	117,312	120,814
34		Wife	Wife's paid legal fees less funds expended from CBA Streamline Account …80 at date of separation (above)
35		Husband	Husband's paid legal fees
36		Total	117,312	120,814
38		Joint	Mortgage to ANZ Bank secured on [C] property	-447,127	-447,127
39		Husband	Rent payable to Department of Primary Industries re [C]property	0	0
40		Husband	Land Tax payable to OSR	0	0
41		Husband	Mortgage to Bankwest secured on [L] property	NK	0
42		Husband	Mortgage to Bankwest secured on [Lot 1 and Lot 3, … W Street, Suburb E]	-315,000	-315,000
43		Husband	Mortgage to Bankwest secured on [Suburb N property]	-290,000	-290,000
44		Husband	Mortgage to Bankwest secured on [F Street, Suburb E]	-540,000	-540,000
45		Husband	Capital gains tax on sale of [L] property & [healthcare businesses]	0	-531,316
46		Husband	Bankwest Commercial Facility - 50%	-1,391,667	-1,391,667
47		Husband	Bankwest partnership … loan Bankwest Commercial Advance Facility account …32 - 50%	-145,000	-145,000
48		Husband	BMW registration …	-101,500	-101,500
49		Husband	Volkswagen Financial services (in relation to the Audi …)	0	0
50		Husband	Hire Purchase Liability - Esanda (Business 2) - 50%	-50,526	-50,526
51		Husband	Hire Purchase Liability - Nissan Finance (Mazda) - 50%	-7,559	-7,559
52		Husband	Hire Purchase Liability - Nissan Finance	-33,507	-33,507
53		Husband	Trade Creditors – [Business 1] - 50%	-208,921	-208,921
54		Husband	Trade Creditors and other Creditors for [Elamin] Discretionary Trust and [Q] Trust (…) - 50%	0	0
55		Husband	Accrued expenses for [Elamin] Discretionary Trust and [Q] Trust (…) - 50%	-7,653	-7,653
56		Husband	Boat lease	0	0
57		Husband	CBA Mastercard Diamond number …10	-335	-335
58		Husband	CBA Platinum Rewards Card, account number …12	0	0
59		Husband	American Express card	-900	-900
60		Wife	CBA Mastercard	-8,979	-87
61		Wife	Personal loan CBA #...00	-50,150
62		Wife	Personal loan CBA #...04	-29,788
63		Wife	Personal loan from family	-28,000
64		Husband	Owed legal fees	0	0
65		Total	-3,656,612	-4,071,098
67		Wife	First State Super	51,545	51,545
68		Total	51,545	51,545