FB & UB & Ors - [2006] FMCAfam 289

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FB & UB & ORS

[2006] FMCAfam 289

FAMILY LAW – Property – accrued jurisdiction – where adult children claim equitable interest in parents investment property – trusts – resulting and constructive trusts – whatever equity adult son had in investment property extinguished by the time he vacated property – where adult daughter establishes constructive trust – equity makes the minimal order that is necessary to relieve the conscience of the legal owner – adult daughter entitled to an equitable charge over investment property – determination of asset pool – obligation to give full and frank disclosure – notional add-backs.

Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989
Real Property Act 1900
Conveyancing Act 1919
Evidence Act 1995 (Cth)

Dougherty (1987) FLC 91-823
Egan (1989) 13 FLR 577
Spellson and George (1989) 13 FLR 242
Bate v Priestley (1989) 13 FLR 376
Elassy and Hamy (2006) FamCA 216
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-593
Russell v Russell (1999) FLC 92-877
Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Junti (1986) FLC 91-759
Mezzacappa (1987) FLC 91-853
Jenkins v Livesey (1985) 1 All ER 106
Luciano (2000) FamCA 401
Calverly v Green (1984) 155 CLR 242
Allen v Snyder (1977) 2 NSWLR 685
Black Uhlans Incorporated v New South Wales Crime Commission (2002) NSWSC 160
Muschinski v Dodds (1985) 160 CLR 583
Atwood v Maude 107 (1868) L.R. Ch. App., at pp. 374-375
Jessel M.R., Lyon v Tweddell 108 (1881) 17 Ch. D. 529
Baumgartner (1987) 164 CLR 137
Green v Green (1989) 17 NSWLR 343
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR Beatty v Guggenheim Exploration Co (1919) 22 NY at 389
Cooke v Cooke (1987) VR 625 at 639
Wright v Wright & Adams (1996) FLR 89
Nichols (1986) 4 BPR 9240
Omacini and Omacini (2005) FLC 93-218
DJM and JLM (1998) FLC 92-816]
Townsend and Townsend (1995) FLC 92-569
Kowaliw and Kowaliw (1981) FLC 91-092
Hauff (1986) FLC 91-747
Chorn & Hopkins (2004) FLC 93-204
Tomasetti (2000) FLC 93-023

Applicant:

Respondent:

First Intervener:

Second Intervener:

File Number:

PAM548 of 2004

Judgment of:

Ryan FM

Hearing dates:

19-21 July 2005, 29-30 August 2005,

21-22 December 2005

Final submissions:

16 May 2006

Delivered at:

Parramatta

Delivered on:

16 June 2006

REPRESENTATION

Counsel for the Applicant:

Mr. G. Thisleton

Solicitors for the Applicant:

Pye Lawyers

Counsel for the Respondent:

Ms. L. Snelling

Solicitors for the Respondent:

Sayan & Associates

Counsel for the Interveners:

Mr. D. Maddox

Solicitors for the Interveners:

Barber & Massey

ORDERS

Within twelve weeks of the date of these orders the wife pays to the husband the sum of sixty nine thousand four hundred and fifty five dollars and ninety five cents ($69,455.95).
Simultaneously upon compliance by the wife with Order (1) the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in the property situate at Rooty Hill being the whole of the land in Certificate of Title Folio Identifier 27/BB/2042.
In the event the wife fails to comply with Order (1) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate at Rooty Hill to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b)Fifty per cent to the wife.
(c)Balance then remaining to the husband who shall immediately pay the wife one hundred and twenty thousand five hundred and forty four dollars and five cents ($120,544.05).
Simultaneously upon compliance by the husband with Order (2) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situate at Colyton being the whole of the land in Certificate of Title Folio Identifier 17/SP36697.
The court declares that GB has a 15.5 per cent interest by way of an equitable charge in the property at Colyton. GB’s equitable interest in this property may be secured by caveat and shall be paid to her upon the property’s sale or the husband’s death, whichever first occurs.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Other than any costs applications, all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM548 of 2004

Applicant

And

Respondent

First Intervener

Second Intervener

REASONS FOR JUDGMENT

Introduction

These are proceedings for the adjustment of property pursuant to s.79 of the Family Law Act 1975 commenced by FB (“the husband”) on 4 February 2004. Essentially the husband proposes that the wife pays him $100,000 upon receipt of which he transfers to her, his interest in the former matrimonial home at Rooty Hill. On her part, the wife would transfer to the husband her interest in the property known as Colyton. In addition both parties would retain items which are in their respective possessions.
On 16 July 2004, the parties’ two adult children GB and AB (“the Interveners”) filed an application seeking leave to intervene in the proceedings. Leave was granted on the basis they claimed a beneficial interest in the Colyton property. This interest was said to arise by virtue of a claim pursuant to s.78 of The Family Law Act 1975 (as amended) or in the courts accrued jurisdiction, by an express, resulting or constructive trust.[1] Until the end of the hearing the orders they sought were those set out in their amended application filed on 15 March 2005. Put simply, the hearing proceeded upon the basis that they were seeking a declaration as to trust in their favour and that the husband and wife transfer Colyton to them. During final addresses the Interveners counsel announced his clients abandoned any claim to an interest in Colyton and sought orders against the Rooty Hill property. Counsel explained “The orders sought by the Interveners seek that each of them be granted a share in the property at Rooty Hill, even though they have made no direct financial contribution to that property, having made a financial contribution to the other real estate at Colyton.” The orders sought are found in a document called “Interveners short minutes of order”[2]. The orders sought are summarised below:
·A declaration that the Interveners hold no interest in the Colyton property.
·The wife transfers her interest in the Colyton property to the husband.
·The husband transfers to AB a 39.9% share in the Rooty Hill property.
·The husband transfers to AB a 9.5% share in the Rooty Hill property.
·The husband transfers to the wife his remaining interest in the Rooty Hill property.
[1] Interveners summary of argument 14 March 2005
[2] Exhibit W
I was troubled by this change in approach coming so late in the hearing, and also that the property against which an interest was previously sought has not been disposed of. The effect of order 1 set out in the Interveners short minutes of order appears to be abandonment of their earlier claim for equitable relief. In the face of the Interveners new order/declaration 1, which disavowed any interest in Colyton, I asked the Interveners counsel the basis upon which the general law supported the remaining orders. Unable to assist me by reference to any cases or texts dealing with the general law, counsel relied upon s.79, specifically, reference to s.79 orders being made in favour of “a child to a marriage”. The Interveners submit each has made s.79(4)(a) and (b) contributions to their parents property and are thus entitled s.79 orders in their favour. Because it was only at the end of the hearing the Interveners changed their stance concerning Colyton, I gave counsel an additional opportunity to provide further submissions on the Interveners new claim. I was particularly concerned about the courts power to make the newly proposed orders.
The orders sought by UB (“the wife”) at the time of trial are set out in her amended response which she filed on 24 March 2005. She seeks that the Interveners be declared entitled to an 80% interest in the Colyton property, with the remaining 20% to the husband. She also seeks an order that she pays the husband $30,000 by way of property settlement, at which time he is to do all things necessary to transfer to her his interest in Rooty Hill. The husband would also pay to the wife one half of the value of a Commodore motor car, as well as one half of the value of any money in the parties’ joint bank accounts. The wife asserts the husband has real estate and cash in Turkey which on her application he will retain.
The hearing proceeded on the basis there is a community of interest between the wife and Interveners. During closing addresses the wife’s counsel supported the interveners approach. In a document called “Minute of Orders proposed by the wife”[3] the wife asked that the court orders (summarised):
·A declaration that the interveners are legally and beneficially entitled to a one half interest in the agreed value of Colyton.
·Order the interveners’ interest in Colyton be substituted for an equivalent interest in the husband’s one half interests as joint tenant in Rooty Hill.
·Upon the husband transferring his interest in Rooty Hill to the Interveners, the wife transfers her interest in Colyton to him.
·The wife gives the interveners 22% interest in Rooty Hill.
·Anti suit injunctions restraining the husband and wife continuing proceedings inter partes in the Court of First Instance of Burhaniye.
·An anti suit injunction restraining the husband from continuing proceedings against the wife’s sister “ST” in the Ankara Duty Court of Instance.
[3] Exhibit X
Consistent with Spellson and George (1989) 13 FLR 242, the wife cannot force upon the interveners an interest in property which they do not seek.
The court received written submissions from the interveners counsel on 17 January 2006. With respect these submissions do not address relevant authority and offered no assistance to the issue of whether the relief sought by the interveners is within the court’s family law jurisdiction, or whether the intervener’s earlier claim against Colyton could be substituted for an order against Rooty Hill. So that all parties had another opportunity to address the court on this issue, my associate advised counsel I would be assisted by submissions which addressed Dougherty (1987) FLC 91-823, Egan (1989) 13 FLR 577, Spellson and George (1989) 13 FLR 242 and Bate v Priestley (1989) 13 FLR 376.
Additional submissions were made orally on 16 May 2006. Helpfully the wife’s counsel provided the court with Elassy and Hamy (2006) FamCA 216 delivered by Justice Coleman on 31 March 2006, a case in which she appeared. Inexplicably, she did not bring his Honour’s decision to the courts or her colleagues notice sooner. In this judgment his Honour considered a claim by adult children for s.79 orders. The wife’s and interveners’ counsel adopted his Honour’s analysis of Dougherty (1987) FLC 91-823 and in effect submitted Elassy and Hamy demonstrated the basis upon which this court could apply s.79 in order to grant the interveners application set out in exhibit W. The interveners submitted that upon the court being satisfied it has s.79 jurisdiction to make orders in their favour, the interveners abandoned their claim to equitable relief. Upon reading his Honours judgment I again invited submissions as to whether the s.79 interveners’ claim is within power. The High Court in Dougherty emphasises that a s.79 claim by children “is confined to those which have their basis in the marital relationship.” Their honours held “The fact of a relationship of parent and child may not suffice.” In the majority judgment their Honours give an example of a child’s circumstances which would be within power. That is “by reference to circumstances importing an unfilled obligation on the part of the parties to a marriage or either of them which arose during the infancy of the claimant”. Per Mason CJ, Wilson and Dawson JJ at 288-9.
In Elassy and Hamy, (supra) Coleman J found that when each of the adult children reached their majority there was an unfilled moral obligation owed to them. This finding makes the case on all fours with the type of case described in Dougherty (supra) as being within power. However, here all parties agree that when the interveners reached 18 there were no outstanding obligations due to them by either of their parents. As the interveners’ s.79 claim was ultimately withdrawn, the question of whether a factual circumstances such as occurs in this case has a sufficient connection to the marriage relationship, and thus falls within the marriage power, must await another day.
By giving the interveners leave to pursue their s.79 claim the husband said he was denied procedural fairness, in the sense he was taken by surprise as to the nature of the relief sought against him, and thus deprived of any opportunity to present relevant evidence. As the discussion in Elassy and Hamy (supra) highlights, a s.79 application by children raises different considerations, in particular s.79(4)(a)-(c), s.75(2) and s.79(2) issues involving the children. Children are precluded from claiming s.79(4)(c) contributions, whereas their parents are not so limited. The husband complained he was denied an opportunity to present evidence of his contributions to the interveners which offset those they asserted against the parties property. Upon my indication the court may accede to an application to adduce additional evidence, possibly upon terms as to the payment of additional costs by the interveners, the interveners sought leave to withdraw their s.79 application and asked the court to determine their earlier trusts claim. Leave was given as sought and the interveners were ordered to pay the husbands costs of the day. The effect of this is that the court must first determine the interveners claim for equitable relief, and then FB and UB’ s.79 application.

The hearing

The principle issues raised in these proceedings are:
·Whether or not the husband has an interest in property in Turkey.
·Whether or not the husband is entitled to a Turkish government pension.
·Whether or not an account in the wife’s sister’s name in Turkey belongs to the husband; it being proceeds from his Turkish pension.
·Whether the husband failed to disclose assets retained at separation and, if so, whether these should be notionally added back.
·If the husband has undisclosed assets, the consequences of this in relation to the property settlement between the parties, and his failure to give full and frank disclosure.
·In relation to Colyton, what contributions, if any, were made by the interveners?
·If there were contributions made by the interveners, are they sufficient to establish some form of constructive or resulting trust in their favour?
·Whether it is appropriate to restrain the parties continuing litigation in Turkey, including restraining the husband from continuing action against the wife’s sister.
·Other minor issues concerning the asset pool.
·What adjustment, if any, should be made pursuant to s.75(2)?
The husband and wife agree their contributions are equal. During opening remarks their counsel submitted neither sought an adjustment pursuant to s.75(2). Thus the hearing proceeded with the interveners claim against Colyton and other pool issues as the pivotal issues. However, during the hearing the wife resiled from her initial stance vis s.75(2). Effectively her changed approach centred upon evidence which she says tended to suggest the husband has not given full disclosure, and also that he has a greater earning capacity than the wife.
This hearing was scheduled to last two days, yet it proceeded for seven days. With respect to the husband and GB, they were each difficult witnesses who seemed to enjoy playing word games with counsel rather than assisting the fact finding exercise. As it turned out, this case had more twists than Hampton Court maze. It made the courts and counsels task unnecessarily complicated. As will become apparent, these parties agree on very little. While the wife and adult children are close, the husband and adult children are estranged. The husband’s relationship with GB is poisonous, so much so that he believes she (at least) is responsible for arranging to have him beaten by an unidentified male during an adjournment. There is no doubt the husband was badly beaten in his garage at home on 27 October 2005. A few days later, on 31 October 2005 the husband found a note in his letter box. The note[4] directs the husband to;
[4] Annexure B husband’s affidavit filed 9 November 2005
i)Withdraw from all lawsuits I commenced against my sister in law and my ex-wife.
ii)Make an offer to my wife, son and daughter payment of 60 thousand dollars for their legal costs to be paid within 28 days in total.
iii)Make an offer to my wife to have the house and to be transferred to her within 28 days.
iv)In return ask them to leave the unit, my holiday home in Turkey and all the money I have in other places for my keeping.
v)Write them an apology letter for putting them through all the pain.
Following the assault the husband contacted Mt Druitt police. The police have been unable to locate his attacker and the complaint has not been resolved. Although the note suggests the husband’s attacker has an association with the interveners, there is insufficient evidence to conclude GB is responsible for it. The husband does not believe AB or the wife is responsible for this reprehensible incident. During closing addresses counsel for the interveners suggested the husband may have written the note. There is no evidence that supports this possibility.
All parties are subject to serious credit submissions. Armed with cogent material, counsel claim FB and UB and GB gave conflicting and/or misleading evidence. Only AB acquitted himself well and with integrity. For reasons I will explain later, this is not a case in which I can confidently prefer all of the evidence of a witness where it conflicts with others.

Chronology

The husband was born in 1937 and is 69 years of age.
The wife was born in 1938 and is 68 years of age.
The husband and wife married in July 1962 in Sungurlu, Turkey, when the husband was 25 years of age, and the wife was 24. The husband was working as a primary school teacher. They had few assets, and throughout their first year of marriage lived in rental accommodation.
In 1963 the husband and wife’s son AB was born.
There is some contention between the husband and wife in relation to the husband’s university study, particularly concerning the time he spent away studying at Ankara University. The husband asserts he studied there in 1967, whilst it is the wife’s assertion that he studied there between 1963 and 1967, and was away from the family for most of this time. Because the husband and wife agree about contributions I need not determine this issue.

In 1963 the husband and wife’s daughter GB was born.
In around 1969 the husband commenced postgraduate university studies in the United Kingdom. During this time he lived in university accommodation, and received most of his salary by way of government grant. At around the time the husband left for Britain, the wife returned to live in Sungurlu, where she rented accommodation near her parents’ home. During this time she received a small amount of money from the husband’s scholarship, meeting the rest of her needs making and selling handicrafts.
The husband returned to Turkey in 1972, where he was able to obtain employment at a University in Ankara, lecturing in Community Work and Development, and also working as research co-ordinator. During this time the wife continued to make and sell handicrafts. In 1978, for a short time the parties’ also commenced a candy making business from their home, for which the wife was primarily responsible.
Owing to the political climate in Turkey at the time, the parties’ made the decision to move with the children to Australia. In early 1980 the husband alone migrated to Australia in order to find employment and to make arrangements for his family to join him. The parties sold their furniture and possessions in order to pay the husband’s air fare and give him a small amount to live on until he found work in Australia. When the husband left for Australia, once again the wife returned to reside near her parents. Each time the wife and children returned to Sungurlu, they did so because the wife had insufficient money to support the children. As they had on earlier occasions, when she returned to Sungurlu the wife’s parents offered financial and other practical support. In Australia, the husband borrowed money from a family friend in order to pay for the wife and children’s airfares. Unsurprisingly, the parties’ both contend the money was borrowed from a different family friend. The husband says he borrowed money from Mr N, whom he later paid back. The wife contends the money was borrowed from Mr C, who was repaid from money the wife earned. Ultimately the issue of from whom the money was borrowed is irrelevant, however it does appear to simply be another inconsistency in what is a long line throughout the parties testimony. Indeed, there seemed to me to be very little which the parties’ came close to agreeing upon at any stage of the hearing.
When the husband arrived in Australia he was unable to find employment, and was in receipt of unemployment benefits. After some months he commenced working, first with Youth and Community Services, and then later with the Turkish Child-Care Co-operative. The wife and children arrived in Australia in 1980, about six months after the husband. When they arrived in Australia AB was 17 and GB 11 years old. About one month after the wife and children arrived in Australia, the wife obtained employment at Flemington Markets, where she earned around $315 per week. This job involved a lot of heavy lifting, and after about three months the wife was unable to continue working. As a result she received a redundancy payment of $5,000 and $25,000 workers compensation payment. In the following years the wife worked from home, minding children, doing piece sewing work and for nine years, commencing 1984, also industrial sewing.
AB left his parents home in 1981 and ever since has lived separately from his parents.
In 1983 the wife sustained a back injury after being involved in a motor vehicle accident, and as a result of another compensation claim, received $5,000.
The parties purchased the Rooty Hill property in 1984 for around $60,000. At the time of purchase the husband was temporarily unemployed. Whilst the parties agree that the wife’s $5,000 car accident compensation was applied to the purchase, it is the husband’s assertion that he paid an additional $15,000 saved from working over the previous few years. The husband says he borrowed $40,000 from the Port Hacking and Sutherland Co-Operative Housing Society. The wife contends that she provided $35,000 towards the purchase, with the remainder of the money being made up of a loan from Westpac. Neither party produced evidence corroborating their assertions in relation to any amount borrowed from Westpac or withdrawn from any banking institution. It seems unlikely to me that the husband and wife would have been able to save $15,000 from their wages. They had only been in Australia a relatively short time where they started with nothing. I consider it likely the parties used earned income to meet their day to day living expenses, supplemented by social security payments and the wife’s lump sum payments. I doubt they had sufficient money to put all the lump sum payments aside. The most likely scenario is the wife contributed about $20,000 from her lump sum payments towards Rooty Hills acquisition and the balance was borrowed from a bank. Which bank is of no moment. The husband and wife lived at Rooty Hill until their final separation. The wife and AB still reside there.
In 1986 AB commenced full time tertiary studies at Newcastle University. During her first year, on term weekends and vacations she returned to Rooty Hill. By the beginning of 1991 she was spending most of her time in Newcastle.
In 1986 the wife inherited a 1/8^th share of her late father’s estate, being an amount of some $10,000 which funds she gave the husband.
The husband and wife purchased Colyton as joint tenants on

7 November 1991 for $80,500[5]. The parties’ agree that the husband and the wife took out a Westpac bank loan for $47,000 which they put towards this purchase. The source of the remaining funds is a pivotal point of contention between the parties, to which I will return later. The husband says he had little superannuation and thought purchasing Colyton was a wise investment strategy. When the children learned he was planning to purchase an investment unit they suggested contributing towards its acquisition. He says he agreed, indicating they would receive a return on their investment upon his death. There is a major dispute about how much the children contributed towards the purchase and the nature of any contribution. For their part, the wife and children claim the unit was purchased in the parents name but all agreed it really belonged to the children. The husband agrees he received $9,800 from the interveners towards the purchase price. The husband says he and the wife paid $20,000 from their savings, AB contributed $2,500 and AB put in $7,300. In her affidavit, AB claims she contributed $38,000, the majority of which she paid using funds previously deposited into her bank account by AB. The wife says she and the husband contributed $8,000 towards the purchase, with the balance made up from the Westpac loan and the children’s payment. As all amounts are drawn from bank accounts in lump sums these bank records should be available to definitively clarify this issue. Surprisingly no-one produced the salient documents. Upon settlement AB, his de-facto partner P and her daughter moved into Colyton where they resided until 1998. Until the Westpac mortgage was fully repaid in January 1996, AB paid the husband between $150 and $160 each week.
[5] Annexure A affidavit AB
In 1991 the husband and wife took in a gentleman, H, and his two year old child. The wife cared for the child whilst H was at TAFE, as well as tendered to other duties such as their washing and cooking. In return for this H did the household shopping and purchased most of their groceries. I accept the wife’s evidence that H paid them a lump sum of $5,000 for their support and to which the husband alone had access.
The wife began receiving a disability pension in March 1993. This pension was paid into the parties’ joint bank account, as was the practice with all funds she received during the marriage.
In about 1994 the wife received $5,000 which was paid into the husband and wife’s joint account.
On or about 24 February 1997 the wife and children claim the husband drew up a document[6] which identifies the parties’ contributions towards Colyton in dollar amount and percentages. They claim the husband proposed selling the unit and dividing the sale proceeds 15.5% to AB, 38.5% to AB and the remaining 46% to him. The husband says the document is a forgery and that no such discussions occurred. He claims he first became aware of this document at some stage after the conciliation conference. There is no doubt the document relied upon is not an original and it is obviously distorted. It is feasible the document has been constructed from a number of documents, in effect created by cutting and pasting a document with the husband’s signature affixed onto a second document which he had no part in creating. AB and the wife say the husband has the original document and provided AB with a copy made on a home facsimile machine, which apparently caused the distortion. This is equally feasible.
[6] Annexure F affidavit of AB
In 1998, AB and his partner P, purchased a property at

Minchinbury. The purchase price was $120,000 financed by a deposit and $114,000 mortgage secured against Minchinbury. Thereafter and until the husband moved into Colyton in around May 2002, the unit was tenanted for $150 per week. Using an agent, the husband managed the unit and during this period, in total he received about $16,000 rental income. Neither of the interveners sought to share in the income.
On 22 March 1999 the husband applied via the Office of the Attache for Labour and Social Security in Sydney for a Turkish superannuation pension.[7] On 11 August 2000, the Directorate General of Turkish Pension Fund Department of Collections approved his application, which has an effective date of 1 May 1999. The husband was required to appoint an attorney residing in Turkey to act on his behalf, including collecting his pension[8]. On 20 October 2000, the husband gave the wife’s sister, ST his power of attorney in relation to managing his Turkish pension[9]. ST lives in Turkey. The original power of attorney is with the office of the Turkish Consulate General in Sydney. In order to receive a Turkish pension the husband had to declare a residence in Turkey. He gave the Directorate General of Turkish Pension Fund Department of Collections an address in Ankara, which he claimed as his permanent address. The husband claimed he is temporarily resident at Minchinbury. Acting on the husband’s instructions the wife’s sister has subsequently managed his entitlement, banking money into a Turkish account in the husband’s and her joint names. The amounts paid from 1 January 2000 until 31 December 2004 are summarised in statements provided from the superannuation fund[10]. These total 26,558,130,000 Turkish Lire (TRL). The Turkish Lira (TRL) is obsolete. It was replaced with the New Turkish Lira (TRY) on January 1, 2005. One TRY is equivalent to 1000000 TRL.[11] Applying exchange rates published on Coinmill.com[12] 26,558,130,000 TRL is $22,818.35.
[7] Exhibit V
[8] Exhibit C
[9] Exhibit T
[10] Exhibit U
[11] Source from Yahoo Finance
[12] As at 12 June 2006
In June 2001 the husband travelled to the USA and Canada.
On 30 July 2001 the wife and AB travelled to Turkey. While in Turkey, the wife and AB drew the equivalent of six months of the husband’s Turkish superannuation payments. I do not know the actual amount withdrawn. In that year the husband was paid TRL 3,094,290,000 of which I infer the wife and AB took half. On current exchange rates TRL 3,094,290,000 is $2,658.55 which means that in six months the wife and AB spent $1,329.74 of the husband’s Turkish superannuation pension.
In September 2001 the wife sold her interest in a number of Turkish properties she owned via inheritance with her surviving siblings. The wife received about $2,000 from these transactions[13].
[13] Exhibit N
Shortly after the husband retired, the parties separated in May 2002. It is at this time he moved to the Colyton property.
At separation the parties had $16,382 in a joint savings account. Without informing the wife, the husband withdrew $16,332, leaving her on a pension and $50. The husband also maintained a second account in a grandson’s name, which at separation contained $4,203. The husband retained these funds for his sole use.
The husband visited Turkey in 2002. While there, in September 2002 he purchased shares in a property co-operative for which he paid $5,500. With this purchase the husband secured an interest in a co-operative known as Burhaniye. When purchased, the building work had not been completed. Before he returned to Australia the husband gave DB a power of attorney in relation to the property. This power of attorney which is dated 27 September 2002[14] specifically focuses upon the husband’s shares and interest in the co-operative development and relevantly authorises DB to give and withhold authority and consents during completion of the co-operative venture. Following upon the initial investment, villa dwellings have since been completed and during subsequent visits to Turkey the husband stayed in the villa referable to his purchase.
[14] Exhibit H
On 12 December 2002 the husband received a $12,577.44 superannuation payout which he alone retained.
On 26 October 2003 the husband again wrote to the Directorate General of Turkish Pension Fund Department of Collections[15]. In this letter he dismissed the wife’s sister as his attorney and requested that his pension is paid to the “Republic of Turkey Ziraat Bank”. As in earlier correspondence the husband uses an Ankara address. The husband now claims he was never entitled to a Turkish pension and denies ever receiving money from his sister in law. Basically he alleges she has acted fraudulently in pursuing a claim for a Turkish pension in his name, and in cahoots with the wife and AB, has spent a significant portion of the money received. The husband has initiated proceedings in Turkey against the wife’s sister, claiming repayment of the funds he says she has misappropriated. On his application the account into which his Turkish pension continues to be paid is secured by an injunction pending further order. The wife seeks an order against the husband in these proceedings restraining him from continuing this action. She has not joined her sister as a party to these proceedings. Even if I was satisfied such a course is appropriate, it would be wrong to restrain only one party to an action. If granted the wife’s sister could, for example, claim costs or substantive relief against the husband, which he could only resist by breaching this courts order. This aspect of the wife’s claim falls at the outset.
[15] Exhibit L
The parties agree the husband is not entitled to receive a Turkish pension, I infer because of a requirement that the pension is paid only to Turkish residents. However it is plain the husband has received this pension for years and that it continues to be paid. I do not believe the Turkish superannuation scheme would continue to pay the husband if he advised them he no longer wished to receive it or that he lied when he informed them he was temporarily resident in Australia. In commencing action against his sister in law for funds he says she received whilst his attorney, the husband demonstrates his interest in receiving the Turkish pension. The most likely scenario is that once these proceedings are finalised the husband is likely to abandon action against his sister in law and hopes to continue receiving his Turkish pension.
On the husband’s application the parties divorce became absolute on 17 August 2003.
On 29 May 2004 the husband shipped a significant quantity of personal possessions to Turkey
In August 2004 the wife received a letter from Turkey from an unidentifiable source. It contains a copy of an email which the husband sent to DB and exhibit H. The husband agrees he sent the email and apart from minor irrelevant discrepancies, agrees the accompanying translation accurately translates his email from Turkish into English. In the email the husband instructs DB how he should respond to an enquiry from the wife’s Australian attorneys. In order to progress this litigation, the husband had agreed, obviously with some reluctance, that he would authorise DB to answer questions posed by the wife’s solicitor[16]. Apparently DB holds a position in the co-operative which means he would answer any questions posed to it. While it is reasonable that the husband notify his friend he would receive enquiries from the wife’s solicitor, including a draft reply smacks of collusion. From the email the wife discovered the husband instructed DB to “temporarily” transfer his interest in the co-operative to SB, DB’s wife. The husband says “temporary” relates to his intention that SB would temporarily take his interest in the co-operative and then sell it for him.
[16] Exhibit K
Alarmed by this turn of events, the wife instructed lawyers in Turkey to take action against the husband on her behalf. In proceedings number 1167/2004 the wife commenced action in the First Instance Court Burhaniye. The wife has succeeded in securing an injunction restraining the disposition of the co-operative property and is pursuing an application to set aside the transfer to SB. The wife also seeks to preserve her interest in the husband’s Turkish pension fund. The husband is defending these proceedings which are continuing.

General principles

The approach to the determination of an application under s.79 is well established by authority. See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. The court must then evaluate the matters contained in s.75(2) insofar as they are relevant; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
In determining what order should be made under s.79, the court must be satisfied in all circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
One of the important issues concerns a parties’ obligation to make full and frank disclosure, which means they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying as aspect of the party’s financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party’s circumstances that may be relevant”.

In Luciano (2000) FamCA 401, O’Ryan J summarised the principles that emerge from these cases as follows.
·“In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
·The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
·If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought”.
These principles apply to all family law financial proceedings, irrespective of the court hearing them.

The interveners claim to an interest in the Colyton property

I agree with counsel that the interveners claim to an interest in Colyton must be determined first. This is because resolution of this issue is fundamental to the asset pool.
All parties agree that Colyton is worth $170,000.
The husband’s counsel submits s.78 enables a court “In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.” Thus even although the adult children are parties to these proceedings, the court may only make a declaration as to the husband and wife’s interest in Colyton. While a court may declare parties to a marriage have no title in a property, this does not constitute a finding that third parties have title to the property. The interveners counsel adopted pp 1-12 of the husband’s written submissions and, by doing so, concede that, as suggested earlier, the interveners’ relief was partly based upon s.78, this claim must fail. The wife’s counsel makes no submissions to the contrary. Thus the interveners claim must be dealt with according to the general law.
Concerning an express trust, the husband counsel submits as follows. “they say that the defendants hold their interest on an express trust because of the words allegedly used by the defendant towards on[e] of the plaintiffs. Even of (sic) the words were said they do not operate to create an interest in land. This would be at odds with the Statute of Frauds which finds modern expression in the New South Wales Conveyancing Act Real Property Act.”

The relevant statutory provisions

CONVEYANCING ACT 1919 - section 23C
Instruments required to be in writing
23C Instruments required to be in writing
(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol:
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.
(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.

REAL PROPERTY ACT 1900 - section 41
41 Dealings not effectual until recorded in Register
(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.

The only writing said to affect Colyton’s title is the copy document dated 24 February 1997 allegedly signed by the husband. The document is not signed by the wife and there is no suggestion by the interveners the husband purported to act as her agent. I received no submissions by the intervener or the wife as to how this document establishes an express trust. As the interveners counsel specifically adopted pp1-12 of the husband’s submissions, it appears for good reason; the interveners abandoned any asserted express trust. I am satisfied the evidence does not establish an express trust.
The interveners sought to tender an email which AB says she received from the husband on 15 June 2004. This email is attached to her affidavit filed in court on 19 July 2005. AB has a personal email address which is [email protected]. At this email address she has received about three emails from her father. The husband’s email address is [email protected] and his internet user name is “joshua”. The husband admits the email identifies his email address as the sender and that at the time it was sent he was living at Colyton. However, the husband denies sending this email and says AB has either managed to hack into his email address or perhaps gained entry to Colyton when he was absent, hacked into his computer and created the email. The husband has only rudimentary computer skills. It is appears he is able to use common computer programs such as “Word”, use the internet and send and receive emails. Until their relationship irretrievably broke down, AB acted as the husband’s “help desk”. Whenever he experienced computer problems, he relied on AB to fix them. Thus, until about 2000 AB was able to access his computer and was familiar it. Until then, AB knew the husband’s computer password, Lucky1, and used his computer to send and receive emails. Although she cavilled with the suggestion, I am satisfied she also knew that the husband used the same password for his internet email account. Given her intimate knowledge of the husband’s computer and email account, it makes no sense that she was privy to only one password.
The husband’s evidence is that his internet password remained unchanged until he heard about this email.
Provided the husband’s internet provider is accessible via a website, a person familiar with his email address and password is able to access his email. This means that, even if a person is unable to physically access his computer, using a website, they could still send an email using his internet address. In this circumstance, even if during 2004 AB could not physically use the husband’s computer, access to his email was still possible. There is no suggestion the wife or AB used the husband’s computer. Unlike AB, AB has not entered Colyton since the husband moved in. Presently, AB works as a network designer. For ten years prior to this she worked as an information technology project manager. She is a qualified database administrator, holds a Cisco certificate in network administration and has management qualifications. Computers are her field of expertise. Once an issue arose concerning the emails’ authenticity, the court heard evidence on the voir dire.
AB’s evidence on this issue fell into two categories. Firstly, her involvement in receiving the email, her access to her father’s home and other factual issues. Secondly, technical evidence concerning the operation of computers and email transmission generally. I have already commented unfavourably on the manner in which AB gave evidence. I was concerned by evidence of a ruse she and her mother engaged in to minimise insurance costs on AB’s car. AB registered her car in her mother’s name. The wife has never held a drivers license but agreed to become the car’s registered owner as this gave AB access to lower pensioner insurance. In June or July 2003 AB gained entry to her father’s unit as a ruse to photograph the contents. She correctly anticipated her father may give a dishonest account about personalty he removed at separation. These photographs[17]show the husband removed much more from Rooty Hill than merely a cup. Although this evidence demonstrates another piece of dishonesty from the husband, the method by which AB set about acquiring it reflects poorly on her. With respect to her, she too was dishonest, albeit in a different fashion.
[17] Exhibit F
Even more concerning was AB’s behaviour in the court room and the manner in which she dealt with her evidence. During the husband’s evidence she was unable to contain herself. Although they tried to distance themselves from her, time and again AB elbowed her brother or mother, barely able to contain her laughter. She smirked and grimaced at her father, gesticulating to those around her as he tried to focus on the task at hand. On numerous occasions I asked her to contain herself. This is because her behaviour seemed purposefully designed to distract her father and undermine his capacity to focus. Through her counsel I warned AB that she needed to behave and that unless she desisted, her court room conduct may detract from her case. My words fell on deaf ears and throughout the hearing AB seemed to do her best to thwart the husband’s capacity to focus. Although at times he appeared irritated by her behaviour, the husband maintained his concentration, probably aided by many years experience working as an interpreter. The effect of this is that, although I am satisfied AB has relevant computer qualifications and many years technical experience in the computer industry, I am not satisfied she is qualified to give expert evidence in this case. Even disregarding her bad behaviour I do not believe a party should be an expert in their own cause. AB lacks the professional discipline and distance expected from an expert witness. As her behaviour demonstrated she is highly partisan and plainly motivated to defeat her father. Thus I give no weight to that part of AB’s evidence categorised as technical evidence.
On the voir dire the husband explained that in 2004 he had an internet account with Australia On Line. This is the same company he used from when he first purchased his computer and thus, is the account he used when living at Rooty Hill. From its establishment and until about August 2004, the husband used “Lucky1” as his internet password. For most of the time he has owned a computer he did not have a computer password. At a repairer’s suggestion, the husband established a computer password which he used for a few months in the late 1990’s. I accept that well before he left Rooty Hill, the husband gave up protecting his computer by a password. Thus, provided a person was familiar with his computer and/or his email user name and password, he or she could use his email address to send an email. This is subject to technical qualifications about which I received further evidence.
The court received a bundle of documents produced on subpoena by Australia On Line.[18] Amongst other things, these documents record the dates and times the husband’s internet account was actually using the Australia On Line server. Time is recorded to the second. This is supplemented by a sample header, taken from the husband’s computer but referable to a different email.[19] As AB had copied the emails onto a CD, the husband called for its production and it was tendered[20]. From the header one can see when the email was sent and compare it to the time received.
[18] Exhibit Q
[19] Exhibit P
[20] Exhibit S
The first email was sent on Tuesday 15 June 2004 at 11.15 pm. Australia On Line’s records reveal that at this time husband’s internet account was inactive. On that day, using Australia On Line, his internet account was active between 18:12:16 and 18:29:30. The second email was sent on Monday 5 July 2004 at 7.07 pm. Australia On Line’s records reveal that at this time husband’s internet account with them was not active. On that day, using Australia On Line, his internet account was active between 19:02:12 and 19:05:03. There was considerable discussion concerning whether “time sent” on an email actually means the time a sender presses a send button thereby transmitting the email or possibly refers to the time an email is received. Unable to gain agreement on this issue from counsel, the only evidence on point was AB’s, which warranted little weight. I was not sufficiently comfortable with her disinterest in the outcome to allow her evidence to determine this issue. Over the husband’s objection I called one of the Family Court’s information technology personnel as the court’s witness.
The court called Dennis Wade, systems sales support officer for NSW. Mr Wade graduated with a Bachelor of Computer Science degree in 2001 and holds a Microsoft Certified Systems Diploma. Before joining the Family Court he was employed by Centrelink as a LAN support officer. A LAN support officer provides computer support to the local area network. In his present position he is part of a helpdesk team who administer the sending and receiving of emails within the Family and Federal Magistrates Courts. Each day something in the vicinity of 10,000 emails are transmitted through the courts email system. There is no challenge to his expertise in the area with which I am concerned.

I accept he is qualified to answer the questions posed.
Mr Wade explained that, using a standard email address through any internet service provider, it is possible for anyone to send and receive emails from a particular account, provided they know the user’s username and password. This applies in relation to servers which are in the public domain, such as Optusnet or TPG. For example, a person could log onto the Optus website, work out what the mail server is, put that into a program like Outlook Express with the username and password, and would as a result have unlimited access to send and receive emails from that account. Australia On Line is another service provider with a webpage from which anyone with an appropriate username and password could access a particular account. Irrespective of where a person logs into an account, all outgoing and incoming email traffic in relation to that account is recorded by the account. Essentially, although rapid, the sending and receiving of emails is not necessarily an instantaneous process. An email without attachments should not take an appreciable amount of time to reach its destination. An email can be delayed by traffic on the network during times of particularly high demand. An email may also be slowed if there is an outage or error of a mail server at either end, or a particularly large attachment. Most commonly, however, the process of sending an email is virtually instantaneous, or if not, less than a few seconds maximum. The effect of this is that the sent time recorded on an email is the time that the receiving server was told by the sending server that the email was sent. It is the time the email was sent at the initiating point. This is evidence to which I attach considerable weight.
Mr Wade explained that when an email is received, a time is recorded in the inbox. Depending on how the inbox is set up, this will either be the time the computer received it, or the time the email server received it. In most cases it will be the former. Generally then, the time on an email is the time an email was received. The time an email was sent is also recorded, but this is something that is found in email properties, usually in an emails header. The header itself is part of the email file. Each email is essentially an individual document, and within which is the header, part of the self-contained document. To right click on an email in Outlook Express, and to then drag and save it onto a disk is to ordinarily take and save both the text of the email and the header. Every piece of information sent across the internet is wrapped. At each point in an emails journey, each of the servers receiving it needs to know where to send it on to. Details of its journey are found in an emails header, or the header file. The header file records where the email has come from, where it is going, and all of the different stops it may have made between these two points. Essentially, the header file records the time that the email hits each of the servers at each location.
According to Mr Wade it is possible that information in relation to time sent can be “spoofed”. In other words, an email address can be changed to represent something different, which includes altering an apparent sent address. Although Mr Wade has never done this himself, he says it is not difficult. When shown the headers for the contentious emails, Mr Wade identified these as ‘abbreviated” headers. The effect of this is that the header file identified the time received by the server. The only information which identified the time each of the emails was sent is in the time sent line found underneath the address in the message itself. In this case, this is the time the receiving server was told the sending server sent the email.
After Mr Wade finished his evidence the parties were provided with transcripts of his evidence and, by agreement, exhibit S was released to the parties for further examination. The husband offered to make his computer available for examination by any experts the wife and interveners nominated. In the event, none of the parties subsequently sought to adduce further evidence on this point and Mr Wade was not required for further cross examination. I accept his evidence and give it considerable weight.
The interveners and the wife claimed that these emails comprised admissions made by the husband. Through his counsel, the husband conceded that if sourced to the husband, the emails amounted to admissions. The challenge to their admissibility centred upon s.88 Evidence Act (Cth) namely, whether it was reasonably open to find that the husband made the admission. Quoting from Odgers Uniform Evidence Law 6^th edition, counsel agreed “A trial judge can only determine whether evidence has the capability of rationally affecting a matter in issue by application of his or her own senses.” Applied to the facts of this case I needed to be satisfied that it was reasonably open to the court to conclude the husband sent these emails. The combined effect of the evidence makes it highly doubtful that these emails were sent by the husband. The time sent is too far outside the operating band with for the husband’s AOL account. I consider AB had the requisite knowledge to access the husband’s email account and even without entering Colyton, was able to send these emails without his knowledge. I do not know whether she did so. However the husband did not need to demonstrate who sent them. It is sufficient that the evidence dissuades me that I can reasonably find the husband sent these emails. Thus the emails were rejected.

Applicable law on trusts

In Calverly v Green (1984) 155 CLR 242 at 246 Gibbs CJ delivered the oft-quoted statement of principle concerning resulting trusts. His Honour said “Similarly, if the purchase price is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in its character as such – e.g. not as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money: Robinson v Preston, at p213; Ingram v Ingram, and Crisp v Mullings (a decision of the English Court of Appeal).”

The effect of this is that a resulting trust arises where, for example, the legal owner of a property has provided less than the full purchase price of that property and another party has paid the remainder. A trust is deemed to have formed to acknowledge the equitable interest of the other person who contributed to the purchase price. The presumption of a resulting trust is one which seeks to give effect to the parties’ intention, by making a presumption about what the intention was. Unless rebutted, there is a presumed intention that the party having contributed to the purchase price did not mean to part with his or her interest in that property, even though someone else has legal title. The trust is therefore automatically created whereby the legal owner holds the property in trust for the equitable owner, in an amount proportional to the contribution the equitable owner has made. See Allen v Snyder (1977) 2 NSWLR 685; Black Uhlans Incorporated v New South Wales Crime Commission (2002) NSWSC 160.
Before dealing with the evidence I should refer briefly to the well established principles concerning constructive trusts. In Muschinski v Dodds (1985) 160 CLR 583 Justice Dean said: “Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf Atwood v Maude 107 (1868) L.R. Ch. App., at pp. 374-375., and per Jessel M.R., Lyon v Tweddell 108 (1881) 17 Ch. D. 529, at p.531.”
The majority of the High Court in Baumgartner (1987) 164 CLR 137 adopted his Honour’s conclusion.
It is important not to overlook Justice Deane’s comments in Muschinski v Dodds at page 615: “..The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.”
Although the principal operation of the constructive trust has been in the area of fiduciary duty, its flexibility has been recognised in a number of cases. In Green v Green (1989) 17 NSWLR 343 Chief Justice Gleeson, as he then was, referred to the area as being one where equity is at its most flexible. For example in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 108 Justice Mason, as he then was, quoted with approval Cadozzo J in Beatty v Guggenheim Exploration Co (1919) 22 NY at 389 who said: “ A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief.”
An important difference between resulting and constructive trusts concerns the role which the parties’ intention plays. A constructive trust is imposed to prevent an unconscionable assertion of legal title, in circumstances where the parties had no explicit intention about how the legal title would be held in the circumstances that have arisen. This does not mean that intention has no role to play in constructive trusts. Part of the justification for a constructive trust is that the parties have jointly been building up assets for the joint venture of the future. Part of the reason why it can be unconscionable to let the legal title lie where it falls is that the parties knew that the other was contributing to the assets for their joint benefit. Another way intention is relevant is where the parties had formed an express intention about what would happen in the very circumstances which have arisen. If the parties contemplated the very circumstances and agreed how the asset would be distributed, it would often be the case that there is nothing unconscionable in holding the parties to their agreement. This list is illustrative and not exhaustive.

Applying the law on trusts to the facts

As earlier explained, the husband alleges that he and the wife agreed to purchase an investment property to supplement their meagre superannuation. The husband at least, considered the unit would produce additional income during their retirement. At that stage the husband was earning between $30,000 and $40,000 annually. Having located Colyton, the husband proceeded with its purchase. Before settlement the husband says the interveners approached him and offered to contribute towards the purchase. He recalls AB saying “Dad, are you going to buy a unit, I will contribute something?” Although the husband agrees both interveners gave him money towards the purchase, he does not explain how or when he received their funds. There is no suggestion from the husband the interveners advanced their funds as a loan or gift. The husband denies attending AB’s bank with the interveners where bank transfers to him allegedly occurred. Having received their funds in some unspecified fashion, the husband says the next event involving one or other of the interveners occurred shortly after settlement. AB approached him and said “Dad, it would be good if we could live in the unit sometime”. The husband replied “Why not? Maybe when the unit is paid off you could live there a while rent free.” He also said “While you are living in the unit treat it like your place, make changes to it, just check with the body corporate first.” Shortly afterwards AB moved in and began paying the husband $150 per week, which the husband claims was rent. The husband says AB missed payments, on which occasions the husband paid $150 from his income to the mortgagee. AB denies this and says in addition to $150 each week he also gave the husband small extra lump sums. There is no dispute that the husband paid all mortgage repayments or that the majority of these came from AB’s periodic payments.
Because of the interveners claim I have considered whether the husband was likely to have $20,000 available with which to purchase Colyton. Using the wife’s recent inheritance the husband needed to only have another $10,000 saved. As the husband was in full time employment and his wife receiving a disability pension, I accept they may well have had $20,000 available for the investment. Whatever funds the husband and wife had saved were deposited in their joint Westpac account. Inexplicably neither the husband nor wife produced relevant bank statements. There is no explanation for failing to do so.
It is the wife’s case that she and the husband paid $8,000 towards the acquisition of Colyton and that subject to the $47,000 mortgage, the interveners paid the balance. Although she does not calculate what this must mean, the effect of this evidence is that the wife appears to contend the interveners paid $25,000 towards Colyton’s purchase.
Counsel for the intervener asked the wife whether she was present during conversations between the interveners and the husband about the purchase of the unit. The wife said she was. The first conversation about the unit at which the wife was present occurred before Colyton was purchased. During a conversation at which only she and the husband were present, the wife says the husband proposed using their children’s savings to buy the unit. The wife was asked “Have you been present, after the purchase of the unit, when either of your children has handed any cash money to your husband?” Having agreed she was, the wife said “I remember AB paying $12,000, and I remember AB paying a big amount, but I don’t remember how much, and then other times I was present when AB was paying.” Questioned further by the interveners counsel about when the $12,000 was paid to the husband, the effect of the wife’s evidence is that the payment was made after settlement. She is adamant this money was paid after AB moved into the unit. Although the wife referred to AB paying the husband $12,000, the interveners counsel asked “Was there any conversation between AB and your husband that you heard, when the $12,000 was handed over?” The wife recounts that before the house (unit) was purchased AB sold a car and gave the husband its sale proceeds. The significance of this evidence is that it indicates the wife adopts an “either/or” approach as to which intervener gave the husband $12,000. Had the wife merely given “yes” or “no” answers to these questions I may have accepted she was confused, either by the question or its translation. However, her fulsome discussion indicates she understood the question and her evidence is thus responsive. Unfortunately, this demonstrates that the wife’s recollection is faulty on a pivotal issue concerning Colyton. It is important to note that neither of the interveners, nor the husband, claims that after settlement either intervener paid the husband $12,000 cash in a lump sum, whether towards the unit or for any other purpose. This important discrepancy casts doubt upon the accuracy of the wife’s testimony concerning the unit’s acquisition. Later in these reasons I deal with numerous deficiencies in the husband’s evidence. I have not overlooked similar difficulties with the wife’s evidence. For example, the wife misled a Turkish court about her involvement in the husband’s Turkish villa. Her disclosure that she disposed of her share in inherited property was late and forced out of her. While the court does not condone these omissions, in this case the consequences lie primarily in the court’s concern about her credit.
The wife recalls that until the mortgage on the unit was repaid she saw AB give the husband money “all the time.” This accords with the husband and AB’s evidence that AB made weekly payments to the husband. Other than her involvement in events surrounding the document allegedly drawn by the husband on 24 February 1997, the wife has little else to contribute to this issue.
Whilst still at school AB worked part time. In 1982 the husband established a State Bank account in his name as trustee for AB into which account AB banked her wages. In April 1987, when AB was 21, she established her own State Bank account into which she transferred those funds previously deposited into her trust account. On 6 May 1987 AB paid $4,613.42 into the account. On 27 July 1987 AB used $5,500 from this account to establish a State Bank term deposit. On 8 February 1990 AB deposited $12,000 into a newly established Westpac account in her sole name. This deposit included the $5,500 plus interest accrued on the term deposit and funds drawn from her State Bank account. Between 9 March 1990 and 9 July 1990 this account grew to $26,964.87. Although I received copies of her bank statements on either side of this period, I do not have those within it. The interveners say during this period AB alone deposited money into AB’s account. By 2 April 1991 this account held $30,913.03. AB claims he deposited $25,000 into his sister’s account from his Westpac account. His Westpac account is not in evidence. AB does not challenge his evidence which suggests that little of the balance remaining on 2 April 1991 belonged to her. By reference to the husband’s 24 February 1997 document, it appears AB deposited considerably less than $25,000 into AB’s account. At most AB paid $15,000 into AB’s account. If AB paid her more than this, AB did not put his additional payments into this account.
Between 9 April 1991 and July 1992 AB’s Westpac account fell from $30,913.02 to $4,228.34. This coincides with the Colyton purchase in November 1991. Although AB produces bank statements up to 9 April 1991 and numerous statements after July 1992 she does not produce those which she says prove two large withdrawals she gave the husband towards the unit. AB says she withdrew two cheques, one for about $8,000 and another for $30,000 which she handed to her father at her bank. The husband denies visiting a bank with AB to retrieve funds for the purchase. AB says “I believed based upon what I had been told by my father that the money I gave him was to be used for the purchase of the home unit for AB and myself.” Her language suggests these payments were made prior to or simultaneously with settlement. Thus, between April 1991 and November 1991 she needed to deposit an additional $8,000 which, as both she and AB were working, seems plausible.
A matter which I find troubling is AB’s failure to produce bank statements for this critical period. The husband’s counsel was highly critical of her failure to do so and invited the court to draw an inference that production of these statements would not have assisted the interveners case. The interveners allege AB provided her bank records to her parent’s bank in order to assist her parents obtain the $47,000 loan, which they required to settle. This accords with common lending practice and I accept is what occurred. However, this does not explain the absence of records between November 1991 and July 1992. There is no evidence AB made any attempt to reconstruct her records, for example, by issuing subpoenas to her bank for her records or to the mortgagee for its records. There is no evidence she attempted to obtain records from the solicitors acting on the purchase. As already mentioned, this case was conducted over a prolonged period. During adjournments AB had ample opportunity to attempt to locate relevant records. As the interveners seek to attack their parent’s title in Colyton, they must prove, on the balance of probabilities, the facts relied upon. Does this mean I must draw an inference that production of these records would not have assisted the interveners’ case? In my view it does not. Because the interveners have the husband’s 24 February 1997 note which acknowledges their contributions, this omission is not as serious as might otherwise have been the case. As there is no suggestion from the husband or interveners that in the months following separation either intervener made significant payments towards Colyton, nothing arises from AB’s failure to produce her records from November 1991 until July 1992. In the circumstances I am not persuaded I should draw an adverse inference concerning AB’s failure to produce her banking records for this period.
The interveners claimed the court should draw an adverse inference in relation to the husband’s failure to produce his bank records. As the onus for proving the facts which would compromise his interest in Colyton sat with the interveners, once it was clear they did not produce their bank records, the husband was entitled to make a forensic decision that production of his was unnecessary. To decide otherwise would wrongly shift the onus to him. Thus although I am critical that he does not produce his bank records for this period, I am not persuaded I should draw any inference from his failure.
AB left school at the end of 1982, aged 19. After leaving school he had a variety of jobs. While working as an animal attendant at the University of Sydney AB was injured. Prior to Colyton’s purchase he settled a workers compensation claim for an unspecified amount. As best he could AB saved regularly and saved most of his compensation payment. He recalls a number of conversations initiated by his father the gist of which is his father saying “We should all get together and buy a property before you waste the money you have.” I accept there were numerous conversations to this effect. AB adopted his father’s suggestion and deposited $15,000 lump sum into AB’s Westpac account. During cross examination AB was uncertain about when, in what amounts and how he deposited additional money into AB’s account. Other than the $15,000 it seemed to me he had little recollection other than giving his sister additional money. I am far from persuaded that AB recalls giving AB $25,000 in total. In any event, AB did this because he believed it would improve their (the families) chances of borrowing money for a property. When the husband found Colyton, AB recalls him saying “I have found a unit at Colyton for auction. We should go and have a look.” Accompanied by his partner P, AB and the husband inspected the unit. During the inspection the husband said to AB and P “Listen this will be your place. You can do whatever you like with it.” AB says he does not know what his father intended by these words, but assumes the husband was trying to reassure P that upon moving in they could treat the unit as their own. Although the husband denies it, AB says he accompanied his father to the auction, where the husband was the highest bidder. The property was passed in and a few days later the husband said to AB “We have bought the unit for $80,000.” AB recalls his father explaining that AB may have difficulties borrowing money because AB had recently changed jobs. Thus it was agreed the purchase would be made in the parent’s name and they would raise the mortgage. Upon settlement AB, P and her daughter moved in. AB says he paid his father between $150 and $160 each week. He claims he also paid a number of additional lump sum payments, in the vicinity of $4,000. AB was buying and repairing cars which he later sold. He says he gave the husband the proceeds to pay onto the mortgage. As the mortgage was repaid in five years, I am satisfied the periodic payments were greater than the required mortgage instalments and it seems likely someone made additional lump sum payments.
AB is a key witness to the husband’s alleged creation of the 24 February 1997 document. As the interveners contributions to Colyton are all made prior to this document’s creation, even if authentic, it has nothing to do with their decision to advance funds. If authentic, its relevance is as an admission by the husband of their earlier contributions and an earlier agreement that the interveners’ payments entitled them to an interest in the property. On the day referred to in the document AB says he was talking with his father in his parents’ kitchen. The wife was outside working in the garden, occasionally coming inside. AB and the husband were engaged in an apparently heated discussion concerning Colyton, in the midst of which the husband stormed out and went to the computer room. Not long afterwards the husband returned with the document and said “If you want to sell the unit…this is what you will get. This is your share. This is everybody’s share. I put it all in.” AB read the document without further comment. AB and the wife agree she was nearby in the kitchen when the document was handed over. AB believes the husband has the original document and says he understands his father used a home fax/photocopier in his computer room to copy the original. As the husband’s taxation records demonstrate, he claims home office expenses. The husband makes no challenge to AB’s evidence he had the equipment needed to generate the copy document and I accept he had a facsimile/photocopier. AB placed his copy of the document in an attaché case kept in his bedroom.
AB was cross examined concerning his mother’s precise location during his conversation with his father and other logistics surrounding its creation. If authentic, I have no difficulty accepting memory lapses about inconsequential aspects of the main event, or minor inconsistencies between his and his mother’s evidence. With respect to the husband’s counsel, these inconsistencies do not materially influence resolution of this issue. Because the event occurred so long ago, I would have been concerned if AB and the wife’s evidence were identical. Compared to all other parties AB was the most impressive witness. At least AB appeared to be doing his best to recall relevant events and give an honest account of his involvement in relevant transactions. Compared to the husband, AB is a far more credible witness.

When first shown exhibit Y the wife’s counsel asked the husband if he recognised the writing as his own. Again the husband played word games and feigned ignorance about whether he recognised the handwriting. Eventually he conceded authorship of the document, once again demonstrating his willingness to try and mask the truth.

I accept this document records funds transfers made by the husband to Turkey or monies held there on his behalf. This document suggests that in addition to the $10,500 the husband dealt with an additional $18,500 and a further $2,000 dealt with on 23 December 2003. Also, that he owed DB TL 2.5 billion and N 1,500 euros. The liabilities relate to the husband’s Turkish villa. The heading on this two page document is “monies sent”. Taking this document at face value it represents the husband’s summary of money he has sent to Turkey. Interestingly one specific sum is $15,000, the amount the husband said he needed to pay as a final instalment for the Turkish villa. The husband does not explain the source of funds transmitted or how the funds were paid. If he wanted to avoid running the risk of being penalised twice by these funds being notionally added back as well as monies received after or taken at separation, the husband needed to give a proper accounting for his income and disposition of assets. His evidence concerning both is so tainted that I cannot be confident he disclosed his entire asset position, and in these circumstances I will add back money he has sent to Turkey. Because I have already dealt with $10,500 above, to avoid double counting this sum must be deducted. Of the balance referred to in this exhibit, I am satisfied the husband had sent least $20,500 to Turkey. From this I deduct $5,000 being the approximate liabilities mentioned in the document. I do not believe that the husband failed to make further periodic instalments on the Turkish villa. The husband should have disclosed these transactions and provided source documents (including his Turkish bank records) which explained or demonstrated these transactions. His failure to do so is a serious omission on his part. In this instance the court need not be overly cautious in accepting the husband’s account of the document, and I believe that in dealing with this issue, justice requires a reasonably robust application of the Black and Kellner (supra) principles referred to earlier.
I have added back the amount paid for the deposit on his Turkish villa. I accept the husband’s evidence this was the first of at least two instalments required for the villa. However I do not accept his evidence he has had insufficient funds to put towards subsequent instalments. In my view it is highly likely the husband has made arrangements with DB and SB to mask his later payments. DB’s letter dated 2 April 2004 is inconsistent with the husband’s purported “temporary” transfer of his interest in the villa unit to SB. If the co-operative had truly forfeited the husband’s “ownership” of the unit, he had nothing to transfer to SB. I do not accept the husband has transferred his interest to SB and I am satisfied she is his agent in his venture to hide his interest in this property. The documents referred to earlier reveal this exercise as an inept sham. The husband has been acutely aware of the wife’s complaint concerning his interest in the Turkish villa. Yet he provides no valuation of his interest, either prior to or subsequent to his purported transfer to SB. He fought valiantly to prevent the wife introducing evidence from her Turkish lawyer on this issue. With DB in a controlling managerial position in the co-operative, I have no doubt the husband could have prevailed upon him to procure a valuation. Thus all the court would have needed to be concerned with is the nature of the husband’s interest.
The effect of these findings is that the husband has paid $10,500 in total towards the Turkish villa. I do not accept the husband would have paid more for the villa than it is worth. Although title to the villa unit does not appear to have been perfected the husband has treated it as his own, a fact demonstrated by his use of it and the purported transfer to SB. It may be that the husband does not have title to the actual villa but rather a shareholding which in effect provides rights of ownership. If I am wrong, the husband has wrongly disposed of a matrimonial asset without the wife’s consent. This alternate scenario properly attracts the Townsend (supra) principles. Thus the Turkish villa unit is included as the husband’s asset at $10,500.
Other than for a short period post separation, the husband’s superannuation was built up throughout the marriage. Applying the principles in Hauff (1986) FLC 91-747 both the husband and wife contributed towards its acquisition. It is likely the husband’s contribution post separation is so small that no injustice is done if the husband’s and wife’s contribution to it are treated as being equal. Once again the husband failed to disclose receiving this amount and I am satisfied the entire sum should be notionally added back and treated as his asset. If I was satisfied the husband applied these monies towards his reasonable living expenses, it is likely I would not notionally add the money back.
I have already referred to the husband’s Turkish superannuation pension. On current exchange rates for the four years ending

31 December 2004 the husband was paid $22,818.35. After deducting the money the wife and AB spent, $21,488.61 remains. Since then the husband has continued to receive a pension, which is currently about $476.50 per month. Although I do not have precise figures for the amounts paid in the intervening period, it is likely the amount paid is reasonably close to this amount. Adding an additional 17 months of payments is $8,100.50. The husband opposes these funds being added back. This is because he claims the wife’s sister has embezzled part of the money and the balance is secured by injunction. Precisely how much the wife’s sister allegedly embezzled was never revealed. The only figures provided by the husband relate to the six months income spent by the wife and AB. At some stage after he obtained the injunction securing these funds, the husband asked the Turkish court to release a portion to his Turkish solicitor for legal fees. I do no accept the husband is unaware of the outcome of this application. The fact of his application is more evidence that the husband claims exclusive use of the funds. The husband should have provided records which show how much is secured by the injunction and the outcome of his application to release funds. His failure to do so is yet another failure to give full and frank disclosure. As it appears likely the husband will eventually seek to discharge the injunction, and on the evidence before this court is also likely to receive the amount secured, I will add back the monies he has received from his Turkish superannuation pension. The amount added back will be the full amount received less that used by the wife and AB. Possibly in this instance the husband is hoist on his own petard. However, adding back any less would be an overly cautious response to the husband’s evidence and his material non disclosure on this issue.
Shortly before separation the husband borrowed about $10,000. He held this money in a lump sum for about twelve months. About twelve months after borrowing this sum, the husband repaid the loan in full. In about 2004 he borrowed a small sum from St George, the balance of which is identified in the above table. None of these funds have been spent on matrimonial purposes and no submission is made as to why the liability should be treated as a joint matrimonial liability. Because the parties agree contributions are equal, including this sum as a joint liability will result in the wife contributing to it. There is no reason why she should. Justice and equity thus requires that this amount is excised from the asset pool. Although removed, it is relevant in the s.75(2) phase.
Both parties have outstanding legal fees incurred in these and the Turkish proceedings. Outstanding legal fees are generally not taken into account as a liability and thus are not included in the asset pool. Chorn & Hopkins (2004) FLC 93-204.

Section 79(4) contributions and other factors

The parties agree their contributions and other s.79(4) factors are equal. There is nothing in the evidence that contradicts this approach and I find in accordance with their agreement.

Section 75(2) factors

Subsection (a). The husband is 69 years old and the wife is 67 years old. For the most part the husband is in good health, although he has had some continuing difficulty with his knees, and has required surgery in the past. He has also had surgery to remove cataracts from his eyes, and although he has relatively good vision at present, it is his evidence that, should his eyes continue to deteriorate, it is likely to impact upon his continuing work as a part-time translator. The wife does not purport to enjoy good health, and suffers from a heart condition. She also suggests that there are other problems in relation to her health, although I have no been presented with evidence that documents these with any particularity. I make no adjustment pursuant to the sub-section.
Subsection (b). I have already made findings about the parties’ assets, financial resources and liabilities. The husband’s Centrelink and casual income is identified in his financial statement. The husband has held a number of positions throughout his working life in both Australia and Turkey, and is now semi-retired. He receives a pension of $225 per week, as well as $68 working as a casual interpreter for Centrelink, and a small amount of money from sale proceeds from a self published book. It seems likely that, whilst the money received from the pension is constant, any other amount received may vary from week to week. For example, the husband has also accounted for an income of $57.69 in his financial statement, being the money he received as a Board of Studies HSC marker. Certainly, even if he continues to mark HSC examination papers, this is a task which would only be required of him once a year, around the HSC examination period. The husband also receives his Turkish superannuation pension which is at least $476.50 per month.[24] Although presently paid into an account which the husband asked a Turkish court to secure by injunction, prima facie the account belongs to the husband. There is no suggestion the husband’s sister in law claims his pension. If the husband elects not to claim this money that is his business. As I have already indicated, I believe the husband hopes to continue receiving this pension, and it is highly likely the action taken against his sister in law is a ruse to mask the true situation from this court. If by receiving the Turkish superannuation pension the husband commits a fraud on the fund, he may be discovered. It is difficult to know what the consequences may be. However, thus far the Turkish court seized of the matter does not appear to have taken action which has resulted in even a suspension of the husband’s payments. Thus I infer the payments are likely to continue. At the end of this case I will invite the husband to address me on whether the court should notify Centrelink that he is receiving a Turkish pension. Proceeding on the basis that notification will be made, this may result in a small reduction in the husband’s Centrelink payment, a factor I take into account. The husband has outstanding legal fees for his Turkish litigation in the amounts set out in his financial statements and also a small liability to St George.
[24] Exhibit U
In her financial statement, the wife identifies an income of $238 per week, being the money she receives from the aged pension. Aside from a number of odd jobs she has had working from home over the years, the wife has spent little time engaged in employment outside of the home, and it is most likely that she will continue to be reliant upon social security payments as her only source of income. I make an adjustment in the wife’s favour pursuant to the subsection.
Subsection (c). This subsection does not arise.
Subsection (d). This focuses on the parties’ financial needs, including their financial commitment supporting any children. From his weekly income, the husband details $158.71 worth of expenditure. He has not included day to day living expenses in this amount, however it seems to me that he would be able to meet any reasonable expense from his income. Aside from upkeep and incidentals on Colyton, his financial obligations are few. Although she only receives an income of $238, the wife details an expenditure of $398 per week. Her commitment is comprised of rates and incidentals on the Rooty Hill property, as well as other weekly expenses. Given that the wife’s weekly expenditure substantially outweighs her income, I find it surprising that the wife is able to meet her obligations from week to week, much less manage to save some money in her savings account. It seems to me that, either her expenses are somewhat exaggerated, or else she is receiving help from someone that she has not entirely accounted for. Given that AB lives with the wife and earns a reasonable income, it is more than likely, and indeed appropriate, that she assists her mother in meeting her weekly obligations. I make no adjustment pursuant to the subsection.
Subsection (e). Neither party has any obligation to support any other person. I make no adjustment pursuant to this subsection.
Subsection (f). As previously discussed, both parties are in receipt of social security benefits. Neither have the benefit of superannuation savings. I make no adjustment pursuant to the subsection.
Subsection (g). The wife is living a hand to mouth existence, modest at best. The husband also lives a modest lifestyle. There is nothing in their respective standards of living which suggests that either is entitled to an adjustment pursuant to this subsection. I make no adjustment pursuant to the subsection.
Subsection (h)-(l). These subsections do not arise.
Subsection (m). The wife cohabits with AB. AB is in a well paid and apparently secure position. There is no evidence AB plans to move away from her mother in the foreseeable future. While this arrangement is mutually beneficial from the wife’s perspective, AB meets expenses the wife cannot afford. This advantage is not offset by the benefit AB receives living in Rooty Hill rent free. The husband lives alone and is entirely self reliant. I make an adjustment in the husband’s favour pursuant to the subsection.
Subsection (n). Section 75(2)(n) achieves a cross-referencing between s.75(2) and s.79(4). The parties agree their s.79(4) outcome is one of equality. There will be no s.75(2) adjustment and thus there is no basis for an adjustment pursuant to this subsection.
Subsection (na). This issue does not arise
Subsection (o). I am troubled by the lack of valuation evidence concerning the Turkish villa unit. Although added into the asset pool at $10,500 it is possible this property is worth more. However it is also quite feasible the property is worth no more than $10,500. Any further adjustment requires mere speculation, something in my view the court should avoid. The wife claims the costs she incurred in having documents translated and extra costs involved in proving the husband’s numerous non disclosures and/or misleading disclosures. If pursued, these are matters properly considered in any costs application. I make no adjustment pursuant to the subsection.
Subsection (p). This issue does not arise
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be no adjustment. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti (2000) FLC 93-023.

Section 79(2) is this outcome just and equitable?

Because the court must consider the actual orders, not just the percentage distribution under s.79(2), justice and equity in cases like this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an equal division of the assets is just and equitable. Firstly, the husband and wife agree their contributions and other s.79(4) factors are equal. There are few relevant s.75(2) factors. Both receive pensions and will have assets of equal value. The husband earns more than the wife but she benefits from AB’s financial support. In the circumstances the husband and wife each has a modest yet appropriate standard of living, with the husband’s superior income balanced by AB’s support of the wife.

Structure of the orders

The wife wishes to retain Rooty Hill and the husband wishes to retain Colyton. The total nett assets are worth $628,214.11, fifty percent of which is $314,107.05. As the wife will retain Rooty Hill this means she has assets worth $383,563. With the husband retaining Colyton, he has assets worth $244,651.11. This means the wife must pay the husband the difference between $383,563 and $314,107.05. This is $69,455.95. With her children’s assistance the wife may be able to raise these funds. However, as doing so might be slightly more complicated than is commonly the case, she will have twelve weeks within which to pay the husband. This time frame seems to strike the right balance between giving the wife sufficient time to make necessary financial arrangements and the husband’s entitlement to receive prompt payment.
If the wife fails to pay the husband on time, Rooty Hill will be sold. Although it has an agreed value its nett sale price cannot be known. Excluding Rooty Hill from the asset pool leaves total nett assets worth $248,214.11, fifty per cent of which is $124,107.05. In this reduced asset pool the husband’s position is unchanged, whereas the wife has assets worth only $3,563. This means that from the husband’s share of the sale proceeds he must pay the wife $120,544.05. This is the amount needed to ensure each spouse receives fifty percent of the nett asset pool.
Earlier I referred to the difficulties facing the wife’s request for injunctions restraining the husband from continuing the Turkish proceedings. Because there are two third parties involved in this litigation, it would be manifestly unjust to restrain the husband alone from participating in the action. Without the third parties, s.81 notions of finality strongly favour completion of the Turkish litigation. Because of the third parties involvement, namely SB who is joined at the wife’s behest and ST joined at the husband’s behest, this court should not interfere in the Turkish litigation.
Concerning Colyton the husband’s interest is subject to an equitable charge in AB’s to the extent already mentioned. Her interest may be protected by caveat, which step, given the husband’s financial behaviour revealed in these proceedings, appears a sensible precaution. Given it was AB’s intention that she receives her interest in the unit upon her father’s death, she must wait until the husband elects to sell Colyton or his death in order to receive payment for her interest. The interveners submitted the court would make orders in their joint favour. That is the court would not distinguish between them. In my view there is no basis for making orders in AB’s favour.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 16 June 2006