Goudarzi and Bagheri

[2016] FamCA 205

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI [2016] FamCA 205

FAMILY LAW – PROPERTY SETTLEMENT – Where the central dispute concerned the former matrimonial home – Where the former matrimonial home is the only jointly owned property – Where it is just and equitable to consider an adjustment to interests – Where the contributions by the husband’s father must be given proper recognition – Where the injection of such significant capital on behalf of the husband must move the assessment of contributions in his favour – Where the wife has the majority care of the parties’ two children – Where a significant adjustment in favour of the wife is justified as a result of one of the husband’s superannuation funds, which is in payment phase – Where otherwise the parties are to retain their own superannuation – Where the husband’s income earning capacity is greater than that of the wife – Where taking all the matters into account, a substantial adjustment should be made in the wife’s favour – Where the former matrimonial home is to be sold and the proceeds divided in such a way that there is an overall division of the identified asset pool in a ratio of 55 per cent to the wife and 45 per cent to the husband – Otherwise parties to retain all other assets in their respective name and possession

Family Law Act 1975 (Cth), ss 75, 78, 79, 106A

Bevan & Bevan [2013] FamCAFC 116
Semperton & Semperton (2012) 47 Fam LR 626
Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Ms Goudarzi

RESPONDENT: Mr Bagheri

FILE NUMBER: SYC 7646 of 2008

DATE DELIVERED: 4 April 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 20-24 July 2015 &
30 November 2015

REPRESENTATION

APPLICANT: In Person  

COUNSEL FOR THE RESPONDENT: Mr Cummings SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. That pursuant to s 78 of the Family Law Act, the husband be declared the sole legal and beneficial owner of the following properties:

   1.1the property situated at and known as G Street, Suburb H in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …;

   1.2the property situated at and known as I Street, Suburb J in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …; and

   1.3the property situated at and known as 1 K Street, Suburb L and the storage room at 2 K Street, Suburb L in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … and folio identifier ....

2. That pursuant to s 78 of the Family Law Act, the wife be declared the sole legal and beneficial owner of the following properties:

   2.1the property situated at and known as M Street, Suburb N in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …;

   2.2the property situated at and known as O Street, Suburb P in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …; and

   2.3the property situated at and known as 1 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier ...

3. That the parties shall forthwith do all acts and things and sign all documents necessary so as to effect a sale of the former matrimonial home [meaning the real property situated at 2 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … for the best price reasonably obtainable in the following manner:

   3.1      the parties shall appoint an agreed real estate agent to act on the sale and, failing agreement within 14 days of the date of these Orders, the parties shall appoint the agent in the following manner:

   3.1.1   the husband shall provide to the wife, in writing, within 21 days of the date of these Orders, the name and contact details of three (3) real estate agents for the wife’s consideration;

   3.1.2    the wife shall select one of the real estate agents nominated by the husband and notify the husband, in writing, of her selection within 28 days of the date of these Orders;

   3.1.3    in the event the wife does not notify the husband of her selection within 28 days of the date of these Orders, the husband shall select one of the real estate agents nominated by him and inform the wife of his selection within 35 days of the date of these Orders; and

   3.1.4    the real estate appointed to act on the sale (“the agent”) shall be the real estate agent selected by the wife pursuant to Order 3.1.2  hereof or the real estate agent selected by the husband pursuant to Order 3.1.3 hereof.

   3.2the parties shall list the former matrimonial home for sale by public auction with a five (5) week marketing campaign, such auction to be held within 12 weeks of the date of these Orders;

   3.3the reserve price for the purposes of the auction shall be $8,480,000;

   3.4the parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):

   3.4.1making the key available to the agent;

   3.4.2allowing inspection of the former matrimonial home at all reasonable times requested by the agent;

   3.4.3doing or saying nothing to hinder or prevent a sale being affected;

   3.4.4ensuring the former matrimonial home, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

   3.4.5signing all documents requested by the agent in relation to the listing for sale of the former matrimonial home, except a contract or agreement for sale, which has not been authorised by the solicitor.

   3.5   The parties shall, unless otherwise agreed, appoint Mr S of T Legal as the solicitor to act on the sale of the former matrimonial home (“the solicitor”) and the parties shall each execute a contact for sale in the form prepared by the solicitor;

   3.6   Neither party may confer on any agent (other than the agent appointed pursuant to Order 3.1 hereof) without the consent of the other party any right to any sole or exclusive agency in respect of the sale of the former matrimonial home or to any commission.

4. In the event the former matrimonial home is not sold by public auction in accordance with the provisions of Order 3 hereof, then the parties shall do all acts and things and sign all documents necessary so as to forthwith list the former matrimonial home for sale by private treaty on the following terms and conditions:

   4.1the parties shall list the former matrimonial home with the agent appointed pursuant to Order 3.1 hereof and in the event the agent is unable or unwilling to act on the sale of the former matrimonial home, the parties shall appoint another agent following the procedure as set out in Order 3.1 hereof;

   4.2the sale price at which the former matrimonial home shall be listed shall be such price as may be mutually agreed upon by the parties, or in the absence of agreement reached within 14 days of the listing of the former matrimonial home for sale pursuant to Order 4 hereof, shall be the price nominated as the fair market value by the single expert utilised by the parties in these proceedings in respect of the former matrimonial home, the costs of an incidental to obtaining that valuation to be shared equally between the parties; and

   4.3the provisions of Orders 3.4-3.6 hereof shall apply to the sale of the former matrimonial home.

5. If the former matrimonial home remains unsold on a date four (4) months from its listing pursuant to Order 4 hereof, the parties shall do all acts and things and sign all documents necessary to immediately relist the former matrimonial home for sale by public auction, on a date nominated by the agent with such auction to be held no later than eight (8) weeks of the date the former matrimonial home is listed for public auction, and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing.

6. That pending settlement of the sale of the former matrimonial home:

   6.1    the husband shall be solely responsible for payment of the loan repayments for the St George Bank residential loans, as and when they fall due, and is hereby restrained from further extending the said loans and/or from redrawing funds applicable to the said loans;

   6.2     the parties shall be equally responsible for the payment of the strata levy payments to the Owners of Strata Plan No. … relevant to the former matrimonial home as and when they fall due and if any payments are not made by the husband or the wife (“the first party”) and the other party makes such payments for the first party, the total amount of the payments made by the other party shall be deducted from the share of the sale proceeds the first party is to receive and paid to the other party; and

   6.3     the wife shall be solely responsible for the payment of the council rates and water rates for the former matrimonial home as and when they fall due and if any payments are not made by the wife and the husband makes such payments for the wife, the total amount of the payments made by the husband shall be deducted from the share of the sale proceeds the wife is to receive and paid to the husband.

7. That upon completion of the sale of the former matrimonial home, the parties shall do all acts and things and sign all documents necessary to have the proceeds of sale disbursed in the following manner and priority:

   7.1      all costs and expenses of sale, including legal costs and disbursements, advertising expenses, agent’s commission;

   7.2      the amounts required to pay all council and water rates outstanding with respect to the former matrimonial home; and

   7.3      the balance shall be divided as to 35 per cent to the husband and

   
   

   65 per cent to the wife provided that the amount required to discharge the St George Bank residential loans is provided from the husband’s share of the funds.

8. That, as between the parties, the wife is hereby declared the sole legal and beneficial owner of all her right, title and interest in and to the following property, and the husband abandons all claim in respect of such property:

   8.1      Motor vehicle 1;

   8.2      wife’s furniture;

   8.3      wife’s bank accounts;

   8.4      wife's jewellery;

   8.5      wife’s contents of the safety deposit box;

   8.6      wife’s shares;

   8.7      wife’s superannuation;

   8.8      all other property or financial resources of whatsoever nature and kind in the possession or control of the wife;

   AND the wife shall indemnify, and keep indemnified, the husband in respect of all liabilities in relation to the abovementioned property whenever and however arising.

9. That, as between the parties, the husband is hereby declared the sole legal and beneficial owner of all her right, title and interest in and to the following property, and the wife abandons all claim in respect of such property:

   9.1      husband’s bank accounts;

   9.2      husband’s furniture;

   9.3      Motor vehicle 2;

   9.4      Motor vehicle 3;

   9.5      husband's superannuation;

   9.6      all other property or financial resources of whatsoever nature and kind in the possession or control of the husband;

   AND the husband shall indemnify, and keep indemnified, the wife in respect of all liabilities in relation to the abovementioned property whenever and however arising.

10. That, save as otherwise provided for in these Orders, the husband and wife shall each retain responsibility for all loans and debts (including, but not limited to, home loans, personal loans, personal taxation liabilities, hire purchases, lease arrangements and credit card liabilities) standing in their sole names and/or associated with the property they are to retain and/or receive pursuant to these Orders and indemnify, and keep indemnified, the other party in respect of same.

11. That, except as provided for by these Orders, each of the husband and wife release the other from all debts owing from one to the other.

12. That all outstanding applications and responses of the parties be dismissed.

13. That each party shall do all acts and things and sign all documents necessary, including providing all consent, to give effect to these Orders in the time periods prescribed in these Orders.

14. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Family Court of Australia shall be appointed pursuant to

    
    

    s 106A of the Family Law Act to execute such deed, document or instrument in the name of the wife and/or husband and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7646 of 2008

Ms Goudarzi

Applicant

And

Mr Bagheri

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for adjustment of interests in matrimonial property.

The applicant wife

1. The applicant is the wife, now aged 54 (“the wife”).

2. The wife chose to represent herself. She had previously been legally represented, but began to represent herself from about the second-half of 2014; certainly, throughout 2015. The wife gave as one explanation that she could not afford lawyers. Given her asset position, I consider it was not a credible explanation. She also asked for an adjournment in order to again instruct legal representatives, but when the adjournment was granted for different reasons, she did not take up the opportunity to do so.

3. In addition to achieving an adjustment of interests in property, the wife was intent, from her perspective, on exposing the husband and members of his extended family as fraudulent and dishonest people. This agenda at times so consumed the wife that she was unable to maintain focus on the tasks of orderly preparation of the case for trial. This was to her own disadvantage in my view.

4. The wife was also bitterly critical of the legal representatives for the husband making accusations and comments in open court which would have led to disciplinary proceedings for any lawyer making such statements.

5. I raised with the wife the disadvantage in which she had placed herself; in a case made complex by her own claims, ultimately somewhat justified, that the husband had not made full disclosure.

6. I am satisfied that the wife fully understood the consequences of her choice in this regard. She appeared to be a highly intelligent and formidably determined person. I formed the impression that she was taking a stance as an accuser of her former husband and his family, and that the opportunity to take that role personally outweighed whatever disadvantage might flow from any lack of legal and procedural knowledge.

7. The wife has academic qualifications including a PhD conferred in 1998. She is not in paid employment, preferring to be a parent at home to the parties’ two children. The wife occupies what was once the family home with the children, a boy aged 15 and a girl aged 10.

8. The wife has no wish or present intention to find employment, despite the evident pleasure she took in academic work and life.

9. In her oral evidence the wife expressed an interest in undertaking a higher degree in economics, stating that the heavy work involved with her current qualifications was not suitable any more.

The respondent husband

1. The respondent is the husband, aged 62 (“the husband”).

2. The husband became a Professor in or around 1986.

3. He currently has a senior academic position in a university and continues in full-time employment.

4. The husband was represented by Senior Counsel and solicitor on every occasion that the matter was before me.

5. The husband was as self-contained as the wife was passionate. He appeared to resist, not engage, during cross examination.

6. The disclosure of interests (said to be of no commercial value to the husband) in property in his birth country Country U began a few weeks before the final hearing, a few years after the property proceedings began. Whatever his reasons, his failure to give full disclosure of his interest in Country U fuelled the anger and frustration of the wife.

The Applications

The wife

1. The ultimate position of the wife was that there having been inadequate disclosure by the husband of his assets in Country U, she should receive and retain all of the Australian assets free of debt.

2. In the alternative (using approximate figures):

   a)That the husband transfer to her his interest in the family home (together with a transfer of the lease for the associated jetty), having repaid all mortgages and debt secured on that property:

   ·Wife ($8.4 million).

   ·Husband (-$2 million).

   b)No adjustment to interests of either party in the three properties held by each:  

   ·Wife ($2.5 million).

   ·Husband ($5.1 million).

   c)Each retain all other property and liabilities currently in possession.

3. As an overall adjustment, the wife would retain 78 per cent of total net assets and the husband 22 per cent.

4. There was also an application by the wife for departure from a child support assessment, which was ultimately abandoned.

The husband

1. A Minute of Order[1], annexed to the husband’s Outline of Case Document, was the document ultimately relied on by him in the proceedings before me.

   [1] Exhibit 1

2. The application proposed (using approximate figures):

   a)

   No adjustment to his interests in three properties in his sole name

   
   

   ($5.1 million).

   b)No adjustment to interests of the wife in the three properties in her sole name ($2.5 million).

   c)Sale of the family home and division of net proceeds 65 per cent to the husband ($4.2 million) and 35 per cent to the wife ($2.2 million), with deduction of certain smaller sums from the wife’s share to be paid to the husband.

   d)Each to keep all other property currently in possession of each.

3. As an overall adjustment, the husband would retain 65 per cent of total net assets and the wife 35 per cent.

4. Accordingly the focus of disagreement over adjustment of interests was whether the family home should be sold and if so how the proceeds should be distributed.

Brief History of Marriage Relationship

1. Both parties were born in Country U.

2. The wife migrated to Australia early in 1982, the husband in 1983.

3. The parties met in Australia, late in 1983, through employment at a NSW university.

4. They began living together in late 1987 or early 1988.

5. They married in a religious ceremony in the USA in 1992. In August 1999 the marriage was registered in Australia.

6. The children were born in 2000 and 2006 both in the USA, by choice of the parties.

Separation and divorce

1. There is a difference between the parties in relation to the date of separation.

2. The wife asserts that the parties separated in December 2006, living separate lives under the one roof. The wife told the husband that she considered herself no longer married to him. The wife began sleeping in the younger child’s room from that time.

3. The wife made an application for final orders in respect of the children in December 2008. Her action was consistent with her assertion of an earlier separation.

4. In July 2009, when consent orders were made that neither party would remove the children from Australia, the wife discontinued her 2008 application.

5. The husband alleges that there was estrangement between the parties, but that the relationship continued into 2011; the intimate nature of their relationship ceasing early in that year, with physical separation under the one roof from August 2011.

1. Although there is a five year difference between the parties on this point, the actual date of the breakdown of the relationship does not make a significant difference in considering the adjustment of interests in property. The wife provided the majority of care and supervision for the children, the husband worked and met the expenses of the household.

2. The wife filed an Application for Divorce in October 2011, which application was opposed by the husband. In August 2012 the wife discontinued her divorce application and the husband filed an Application for Divorce. Ultimately, a Divorce Order was made on 20 December 2012, which took effect on 21 January 2013.

3. The parties agree that the husband moved out of the family home on

   
   

   11 December 2011 pursuant to an order of this Court.  The children remained living with the wife in the home after the husband moved away.

4. On 23 April 2013 final Orders relating to arrangements for the children were made by consent. The Orders provide for the children to live with the wife and spend substantial and significant time with the husband.

History of the Litigation in Relation to Property

1. On 25 September 2012, during the course of directions for parenting proceedings, the wife was given leave to file an amended application, amended by inclusion of the property orders she sought.

2. On 15 October 2012 that document, titled “Further Amended Initiating Application”, was filed.

3. The property proceedings continued separately from parenting.

4. On 9 November 2012 the husband filed his Further Amended Response.

5. On 8 February 2013 the parties attended a Conciliation Conference.

6. In June 2013 the parties had all real estate valued by a single expert, V Real Estate.

7. On 25 June 2013 the parties attended a financial mediation.

8. Both parties were legally represented at each of those two events. The parties were able to resolve their dispute in principle through mediation, but not its terms. The proceedings in this Court continued.

9. On 27 September 2013 the wife filed a document titled “Further Further Amended Initiating Application”. That is the document relied on in the proceedings before me.

10. On 31 October 2013 the husband filed his “Further Amended Response”.

11. On 16 April 2014 a Single Expert, Mr W, was appointed to provide an opinion on the CGT and realisation costs, if all or any of the properties, other than the family home, were to be sold. The husband was to pay the costs and any contribution of the wife was to be considered by the trial judge.

12. On 30 June 2014 Orders noted that the parties had instructed the Single Expert to undertake updating valuations of all properties with the husband to pay the costs and the wife to subsequently reimburse the husband for half that amount.

13. On 25 August 2014 the matter was listed for final hearing for three days commencing 20 January 2015.

14. On 12 December 2014 Orders were made in which the wife was directed to allow access to the family home by a valuer, Mr X, on behalf of the husband. Also on that day the wife made an unsuccessful application to vacate the hearing dates.

15. On 5 January 2015 the wife filed an Application in a Case seeking adjournment of the hearing to enable her to become legally represented.

16. On 19 January 2015 the husband filed a Response to the Application in a Case opposing adjournment and also seeking leave to rely on the valuation prepared by Mr X.

17. On 20 January 2015, the first day of hearing, the wife filed a further Application in a Case seeking a raft of orders, including further disclosure by the husband.  On that day the wife again made an application for adjournment. The application was opposed by the husband.

18. The husband pressed for leave to rely on the valuation by the adversarial expert, Mr X, a course opposed by the wife. The valuation had been very recently served and was substantially higher than the value ascribed by the Single Expert.

19. As a result the hearing was adjourned. Orders were made to enable the wife to obtain and rely on adversarial experts in respect of all or any of the parties’ properties. The wife did not pursue that course.

20. On 20 March 2015 interim consent Orders were made:

    …

    12. That the husband provides details of all his bank accounts and real properties in [Country U] and USA.

    13.That the husband provides details of his superannuation entitlement in [Country U] and his payout since 1 January 2007.

    14. That the husband provides details of his inheritance in [Country U]

    Notation:

    (A) That the position of the Applicant is that that page of proposed Orders had been handed with other orders made by consent and that the position of the Respondent was that that page had not been handed up and was a matter for the Applicant to bring forward if she chose, nevertheless there is consent to the making of Orders 12, 13 and 15 and I make those orders accordingly.

    (B) That Respondent consents to an extension of the time from Friday
    27 February 2015 to 15 April 2015 in respect of Order 3 of the
    Order made on 20 January 2015.

21. On 19 June 2015 the husband filed his trial affidavit and financial statement. References were made to the husband having made very recent enquiries about property in Country U and “finds he has some”. ‘Annexure N’ of his affidavit related to property in Country U.

22. On 20 July 2015 the hearing commenced.  The wife was not legally represented, had not obtained any adversarial valuations, and had not filed an updating affidavit.

23. Further applications were made by the wife, which consumed the first day of hearing. Unsurprisingly the applications related to the recent disclosure by the husband of property owned by him in Country U. It was hardly a propitious start to a matter which had been so delayed in getting to a hearing.

24. The hearing did not conclude in the four days allocated. A further two days,

    
    

    30 November 2015 and 1 December 2015, were appointed and the matter concluded on the first of those days.

The Issues

The family home

1. The wife wishes to retain the family home.

2. The husband proposes an order for sale of the matrimonial home.

3. Should the wife have the opportunity to buy out the husband’s interest in the former matrimonial home?

4. The wife was focused on retaining the home, unencumbered. She did not address the possibility of the husband being successful in his application for the sale of the home. There was no evidence of how she would finance the acquisition of the husband’s interest.

Superannuation pension of the husband

1. How should the Superannuation Pension of the husband, in the payment phase, be treated?

Costs paid by husband for expert reports

1. How should this issue be considered?

Property owned by husband in Country U

1. The husband made very late disclosure of property in Country U owned by him.

2. The wife had made multiple applications in relation to assets in Country U, resisted by the husband.

3. The husband asserts that the property is not valuable to him and that any property registered in his name is held on trust for family members or will be transferred to a charitable trust operated by his family of origin.

4. How should this issue be considered?

The Evidence

1. The documents relied upon by the parties is as follows:

   Wife

   a)Further Further Amended Initiating Application filed 27/09/2013;

   b)Financial Statement filed 20/07/2015;

   c)Affidavit of the wife filed 01/07/2014[2];

   [2] The wife chose not to file an updating affidavit pursuant to Order 6 made 20 January 2015

Husband

d)Minute of Order[3];

[3] Exhibit 1

e)Financial Statement filed 19/06/2015;

f)Affidavit of the husband filed 27/08/2014;

g)Affidavit of the husband filed 19/06/2015;

h)Affidavit of the husband filed 16/07/2015;

i)Affidavit of Mr X (valuer and adversarial expert) filed  19/06/2015;

j)Affidavit of Mr Y (registered valuer) filed 15/07/2015;

k)Affidavit of Mr Z (valuer) filed 29/07/2015; and

Single Experts

l)Affidavit of Mr W (accountant) filed 28/11/2014.

Approach to Alteration of Interests in Property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[4]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) of the Act in coming to an adjustment;  and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [4] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

1. Identify the existing legal and equitable interests of the parties

1. The relevant assets are set out in the balance sheet prepared by the husband.[5]

   [5] Exhibit 23 (first five pages)

2. The wife did not engage in the preparation of a joint balance sheet, nor did she prepare her own document.

O’ship		Description	Wife value	H’band value
ASSETS
Real Property
1	Jt	2 Q Street, Suburb R. Adversarial expert valuation at 08/01/2015	$8,480,000
2	W	M Street, Suburb N. Single expert valuation at 07/07/2014.	$550,000	$550,000
3	W	O Street, Suburb P. Single expert valuation at 09/07/2014.	$820,000	$820,000
4	W	2 Q Street, Suburb R. Single expert valuation at 04/07/2014.	$1,150,000	$1,150,000
5	H	G Street, Suburb H. Single expert valuation at 27/10/2014.	$2,650,000
6	H	I K Street, Suburb L. Single expert valuation at 02/07/2014.	$1,650,000
7	H	I Street, Suburb J. Single expert valuation at 04/07/2014.	$890,000
Total Real Property	$16,190,000
Bank Accounts
8	W	BankWest Acc #... at 01/07/2015.	$0	$0
9	W	BankWest Acc #... in name E Bagheri at 16/06/2015.	$0	$0
10	W	BankWest Acc #... in name D Bagheri at 16/06/2015.	$0	$0
11	W	BankWest Acc #... in name E Bagheri at 16/06/2015.	$0	$0
12	W	BankWest Acc #... in name E Bagheri at 16/06/2015.	$0	$0
13	W	BankWest Acc #... at 01/07/2015.	$0	$0
14	W	BankWest Acc #... in name D Bagheri at 26/06/2015.	$0	$0
15	W	St George Acc #... at 05/07/2015	$0	$0
16	W	St George Acc #... in name AA at 15/01/2015.	$0	$0
17	W	St George Acc #... at 08/05/2015.	$0	$0
18	W	St George Acc #... in name AA at 08/05/2015.	$0	$0
19	W	St George Acc #... in name AA at 17/04/2015.	$0	$0
20	W	Bank of America #... (US$269.97) at 16/12/2014 (1US$=1.3579AUD).	$0	$0
21	W	ANZ #... in name AA at 22/09/2013 – to be updated for trial.	$0	$0
22	W	Citigroup #...	$0	$0
23	H	St George Acc #... at 20/11/2015.	$2,527
24	H	St George Acc #... at 20/11/2015.	$269
25	H	ANZ #... at 19/11/2015.	$0
26	H	ANZ #... at 19/11/2015.	$0
27	H	ANZ #... at 19/11/2015.	$0
28	H	Bank of America #... US$11,001.16 at 19/11/2015 (1US$=$1.3841AUD).	$15,226
29	H	BB&T #... US$20,542 at 19/11/2015 (1US$=$1.3841AUD).	$28,432
30	H	Funds in Barkus Doolan Trust Account as at 23/11/2015.	$44,891
Total Bank Accounts	$91,345
Motor Vehicles
31	W	Motor Vehicle 1. Single expert valuation at 20/06/2013.	$0	$32,000
32	H	Motor Vehicle 2. Single expert valuation at 20/06/2013.	$9,500
33	H	Motor Vehicle 3.	$40,000
34	H	Motor Scooter.	$4,500
Total Motor Vehicles	$86,000
Furniture, Furnishings & Effects
35	W	Household contents in wife’s possession. Single expert valuation at 20/06/2013.	$5,000	$23,665
36	H	Household contents in husband’s possession. Single expert valuation at 20/06/2013.	$24,930	$24,930
37	W	Jewellery. Single expert valuation at 20/06/2013.	$0	$18,700
Total Furniture, Furnishings & Effects	$67,295
Total		$16,434,640

O’ship		Description	Wife value	H’band value
ADDBACKS
38	H	Paid legal costs as at 26/11/2015.	$848,568	$848,568
39	H	Paid legal costs to ICL (including Dr Waters).	$42,841	$42,841
40	H	Paid costs to single expert witnesses in the first instance.	$16,691	$16,691
41	W	Paid legal costs to Watts McCray at 21/11/2013.	$658,265	$658,265
42	W	Paid legal costs to Swifte Law at 02/07/2015.	$54,110	$54,110
Total		$1,620,475	$1,620,475

O’ship		Description	Wife value	H’band value
LIABILITIES
43	H	St George residential loan #.. at 20/11/2015.	$352,313	$352,561
44	H	St George residential loan #... at 20/11/2015.	$501,663	$501,982
45	H	St George Line of Credit #... at 20/11/2015.	$1,392,098
46	H	Citibank Mastercard at 24/11/2015.	$0	$0
47	W	Citibank Ready Credit #...	$0
48	W	St George Vertigo #...	$0
49	W	St George Portfolio #...	$159,000	$99,480
50	W	Bank of America credit card	$0
51	W	CGT. Single expert report 20/11/2014.	$491,441
52	W	Realisation costs. Single expert report 20/11/2014.	$63,000
53	H	CGT. Single expert report 20/11/2014.	$521,259
54	H	Realisation costs. Single expert report 20/11/2014.	$129,750
Total		$3,551,571

O’ship		Description	Wife value	H’band value
SUPERANNUATION
55	W	UniSuper (accumulation interest) at 08/07/2015.	$8,660	$8,660
56	H	UniSuper (defined benefit and accumulation interest) at 30/12/2014.	$363,058	$363,058
57	H	State Super (payment phase) at 15/06/2015	$2,030,960	$2,030,960
Total		$2,402,678
Assets			$16,434,640
Plus Addbacks			$1,620,475	$1,620,475
Total Assets			$18,055,115
Less Liabilities			$3,551,571
Total Net Assets			$14,503,544
Plus Superannuation			$2,402,678	$2,402,678
Total Net Assets			$16,906,222

Source
1	Valuation Report of Mr X dated 08/01/2015
2	Valuation Report of Mr Y dated 07/07/2014
3	Valuation Report of Mr Z dated 09/07/2014
4	Valuation Report of Mr Z dated 04/07/2014
5	Valuation Report of Mr Z dated 27/10/2014
6	Valuation Report of Mr Z dated 02/07/2014
7	Valuation Report of Mr Z dated 04/07/2014
23	Transaction Listing of Husband’s Account as at 20/11/2015 (provided to the wife on 24/11/2015)
24	Transaction Listing of Husband’s Account as at 20/11/2015 (provided to the wife on 24/11/2015)
25	Transaction Listing of Husband’s Account as at 19/11/2015 (provided to the wife on 24/11/2015)
26	Transaction Listing of Husband’s Account as at 19/11/2015 (provided to the wife on 24/11/2015)
27	Transaction Listing of Husband’s Account as at 19/11/2015 (provided to the wife on 24/11/2015)
28	Statement as at 19/11/2015 (provided to the wife on 24/11/2015)
29	Statement as at 19/11/2015 (provided to the wife on 24/11/2015)
30	Notice as to Costs of Husband dated 26/11/2015
31	Valuation Report of BB Valuers dated 20/06/2013
32	Valuation Report of BB Valuers dated 20/06/2013
33	[blank in original]
34	[blank in original]
35	Valuation Report of BB Valuers dated 20/06/2013
36	Valuation Report of BB Valuers dated 20/06/2013
37	Valuation Report of BB Valuers dated 20/06/2013
38	Notice as to Costs of Husband dated 26/11/2015
39	Notice as to Costs of Husband dated 26/11/2015
40	Notice as to Costs of Husband dated 26/11/2015
41	Husband’s Financial Statement filed 19/06/2015
42	Husband’s Financial Statement filed 19/06/2015
43	Transaction Listing of Husband’s Account as at 20/11/2015 (provided to the wife on 24/11/2015)
44	Transaction Listing of Husband’s Account as at 20/11/2015 (provided to the wife on 24/11/2015)
45	Transaction Listing of Husband’s Account as at 20/11/2015 (provided to the wife on 24/11/2015)
46	[blank in original]
49	Documents Produced under Subpoena from St George Bank Ltd
51	Report of CC Accountants dated 20/11/2014
52	Report of CC Accountants dated 20/11/2014
53	Report of CC Accountants dated 20/11/2014
54	Report of CC Accountants dated 20/11/2014
55	Super Information Kit dated 08/07/2015
56	UniSuper Statement as at 31/12/2014
57	Super Information Kit

Adjustments to the balance sheet

Items with nil value

1. The following assets were assigned a nil value and have been removed from the balance sheet: Items 8-22 and 25-27.

2. The following liabilities were assigned a nil value and have been removed from the balance sheet: Items 46-48 and 50.

Legal costs as addbacks

1. The husband proposes adding back all legal costs paid to date by both parties including disbursements (Single Expert) arising from the parenting proceedings. Those proceedings were not before me. I consider that the outcome of doing so would be distorted in favour of the husband, whose costs are greater, especially as the wife has represented herself in the later stages of the litigation.  

2. I have therefore removed Items 38-42 inclusive from the balance sheet

3. The matter of costs paid by the husband (Item 40) in advance for consideration at trial is a separate issue.

4. A Single Expert, on CGT and realisation costs, was appointed pursuant to Orders of 16 April 2014; such costs having been paid by the husband. The CGT and realisation Costs are drawn from the report of the Single Expert.

5. There was no evidence from the wife that she intends to sell her investment properties. To the contrary, the wife will support herself from rental income. Likewise for the husband, there was no evidence of intention to sell his investment properties. He put that possibility no higher than “if they are sold”.

6. Accordingly Items 51-54 are removed from the balance sheet.

Present individual financial interests

1. The present individual financial interests of the parties can therefore be identified as follows, excluding two significant items:

   a)Item 1 – their joint interest in the family home (Item 1); and

   b)Item 57 – the husband’s UniSuper Pension (Item 57).

2. For the wife:

Item	Description - Assets	Value
2	Suburb N property	550,000
3	Suburb P property	820,000
4	1 Q Street	1,150,000
31	Motor vehicle 1	32,000
35	Household Contents	23,665
37	Jewellery	18,700
55	UniSuper	8,660
Total	2,603,025
Item	Description – Liabilities	Value
49	St George Portfolio	99,480
Total Net Assets (wife)	2,503,545

1. For the husband:

Item	Description - Assets	Value
5	Suburb H property	2,650,000
6	Suburb L property	1,650,000
7	Suburb J property	890,000
23	St George Acc	2,527
24	St George Acc	269
28	Bank of America Acc	15,226
29	BB&T Acc	28,432
30	Funds in Trust Acc	44,891
32	Motor vehicle 2	9,500
33	Motor vehicle 3	40,000
34	Motor scooter	4,500
36	Household contents	$24,930
56	UniSuper	363,058
Total	5,723,333
Item	Description – Liabilities	Value
43	Loan #...	352,561
44	Loan #...	501,982
45	Line of Credit #...	1,392,098
Total	2,246,641
Total Net Assets (husband)	3,476,692

2. Would it be Just and Equitable to make an Adjustment to Interests in Property

1. The parties have real estate in Australia with a gross value of approximately $14.5 million (excluding the UniSuper pension).

2. The value of the former family home (approximately $8.5 million) represents more than half of that value.  It is the only jointly owned asset.  The wife lives there with the children. She wishes to retain the property and continue to live there. The husband proposes sale of that property and division of net proceeds.

1. In any event the marriage having been dissolved and the central dispute about the family home remaining unresolved, it is just and equitable to consider an adjustment to interests in the jointly owned property and to consider the need to make consequential adjustments to other interests as necessary.  

Approach to Adjustment

1. On behalf of the husband it was submitted that the proper approach was to consider assets in two pools:

   Pool One: Item 57 – Superannuation with State Super in the payment    phase (to the husband); and

   Pool Two: All other assets and liabilities, including the parties’ other superannuation benefits.

2. The basis for this approach, which I accept, is that the State Super was valued according to the Superannuation Regulations, but is already received by the husband as income.  To take it into account as an available capital sum for division would lead to an inequitable outcome.[6]  The proper course is to take this asset into account under s 75(2) of the Act as an income stream with the character of superannuation as an adjusting factor.

3. Consideration of ss 79(4) and 75(2) of the Act in Order to come to a Just and Equitable Adjustment

Contributions - section 79

[6]Semperton & Semperton (2012) 47 Fam LR 626

At cohabitation

1. In 1987 the wife had furniture, household contents, family jewellery, “minimal superannuation” and savings.

2. The husband had an interest in superannuation and some personalty.

3. Neither of the parties owned any real estate; each lived in rented premises.

During the marriage

1. In 1988 the parties began living together when the wife moved in to live with the husband in his apartment in Suburb DD.

The Wife

1. The wife was both studying and working for a private company, earning $36,000 per annum. From 1987, for about 12 years thereafter, she worked at a university part-time earning between $20,000 and $40,000. In about 1999 she ceased paid work entirely.

2. The husband was employed by universities at increasingly senior levels.

3. The wife acquired properties in her sole name as follows:

   a)M Street Suburb N (the “Suburb N Property”) in July 1988. She borrowed to do so. There was equity of about $35,000;

   b)O Street Suburb P (the “Suburb P Property”) in October 1990 for $195,500. There was a Bank loan of $110,000 and the balance from the parties; and

   c)1 Q Street Suburb R (the “1 Q Street property”) in September 1992 for $297,000. There was a loan for $237,000, the balance paid by the husband.

4. These three properties were, and continue to be, investment properties producing rental income for the wife.

The Husband

1. The husband was in paid employment throughout the marriage.

2. He acquired properties in his sole name as follows, though borrowing savings and two very substantial gifts:

   a)   

   I Street Suburb J (the “Suburb J property”) in

   
   

   August 1988 for $200,000;

   b)     3 Q Street Suburb R (the “3 Q Street Property”) on 25 November 1994 for $625,000;

   c)     G Street Suburb H (the “Suburb H property”) in October 1998. This property was a gift to the husband from his father. The value was $1.2 million;

   d)    

   1 K Street Suburb L (the “Suburb L property”) in

   
   

   December 1998 for $900,000. This property was purchased for US$500,000 (AUD$806,000) and gifted to the husband by his father; and

   e)     2 Q Street Suburb R (the “2 Q Street property”) in July 1999 for $2.81 million.  This property became the family home. The purchase was financed by loan of $2.6 million secured on the Suburb L and Suburb H properties. In December 2004 the husband transferred this property into the joint names of the parties. It is the only jointly owned property.

3. The parties undertook extensive renovations on their properties. The wife engaged in managing that work. She also managed the rental and maintenance aspect for most of the properties until 2011.

Children and family

1. The parties agree that the wife was primarily responsible for the day-to-day care of the children and the running of the household. The wife has devoted her attention to the children by willing choice to the detriment of her potential career.

2. The husband has been involved in the care of the children to a lesser extent, consistent with his employment obligations.

Overall contributions

1. The husband made the very substantially greater contribution to the acquisition of assets.  The gifts from his father enabled the purchase of three properties, one of which is the most valuable. This contribution by the husband’s father must be given proper recognition.

2. It is submitted on behalf of the husband that his overall contribution should be assessed at 65 per cent. I agree, in fact it could not reasonably be less.

3. Each party worked to capacity in paid employment, unpaid employment and in the raising of the children, but the injection of such significant capital on behalf of the husband must move the assessment of contributions in his favour.

Relevant factors under section 75(2)

The age and state of health of each of the parties

1. The wife is aged 54. She described herself as generally in good health with some lower back problems.[7] There was no medical evidence in relation to that statement, so I assume that those problems do not interfere with normal daily function.

   [7] Affidavit of the wife filed 01/07/2014, par 233

2. The husband is aged 62. He is apparently in good health.

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment 

The Wife

1. The wife has, together with the children, the exclusive use of the family home in the Eastern Suburbs of Sydney.  It was described by the valuer as “a two storey strata title unit situated on the lower two levels of a five storey building”. It is a waterfront property with an associated jetty. There is a separate granny flat.

2. The wife receives income and other payments from four sources:

   a)     Rental income of approximately $1,950 gross from three investment properties owned by her;

   b)     Income from Homestay students from time to time of $480 per week;

   c)     Part A&B Family Benefit of $130 per week; and

   d)     Child Support payments from the husband of $423 per week.

The Husband

1. The husband receives income from:

   a)Rental income of $1,650 per week from three investment properties owned by him;

   b)Gross academic and related income of $4,849 per week;

   c)Employer superannuation of $476 per week; and

   d)State Super pension payment of $3,068 per week.

2. The husband has carried the loan costs in respect to the family home since separation, as well as his own living expenses, which include rented premises in close proximity to the children.

3. It will be a matter for the husband whether he discharges current debt from his share of the net proceeds of sale or secures it by refinancing over other assets.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

1. The wife has the majority care of the two children aged 15 and 10 years.

2. The husband has substantial care of the children.

Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i)  any law of the Commonwealth, of a State or Territory or of another country; or (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party

1. The husband has his State Super Pension in the payment phase. I have considered it as a stand-alone asset. It is a very significant financial resource providing an income now and in post-retirement. It was properly valued at
   $2.03 million, but has not been included in the balance sheet with that value.

2. A significant adjustment in favour of the wife is justified.

3. The State Super Pension is equivalent to about 14 per cent of the net asset pool. However it will be paid over the lifetime of the husband, whatever that period is, and is not presently available as a lump sum, so should not be directly equated. 

4. The husband also has another substantial superannuation fund payable on retirement (Item 56). That fund has been included in the general asset pool.

5. The wife will not have any pension income. Her small fund of $8,660 (Item 55) is unlikely to grow. That fund has been included in the general asset pool.

6. There was a common position throughout the proceedings that each party would retain their respective interests in superannuation.[8]

   [8] Order 8 of the wife’s Further Further Amended Initiating Application and Order 9 of the husband’s Minute of Order

7. In response to submissions on behalf of the husband, the wife said for the first time that she wanted to share equally in the income stream from the State Super Pension of the husband. I interpreted this to be not so much an application to amend her orders sought, but as a submission for equitable treatment.

8. The wife asserted that during the marriage the parties had agreed that the superannuation of the husband would provide income in retirement, causing the wife to discontinue contributions.  It could have been so, although there was no evidence to that effect. However, even if it was a belated application for a splitting order, it came too late, without notice to the husband and the Trustee.

9. Accordingly each party will retain their own superannuation as sought in their respective applications.

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

1. The two children attend private schools in Sydney and have done since kindergarten. The parties intend for their education to continue in this way, progressing to tertiary education if wished.

2. Both parties and the children have travelled extensively to Country U, Europe and the USA for holidays and for the husband’s work.

3. They have enjoyed a comfortable life and the children are involved in a great many activities, including sport, music, chess and dance.

4. The children have lived in their present home since birth. The husband rents premises in close proximity. The wife wishes to remain in the family home with the children.

5. The evidence does not support an order being made to that effect. A substantial adjustment should be made in order to maintain the wife’s standard of living now and in the future, although not in the current family home, to enable the wife and children to remain in the area familiar to them.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. The parties formed a relationship in late 1983. They began living together in late1987/early1988. They married in 1992.

2. There was a period of estrangement from 2006 to 2011 without significant difference for the running of the household or arrangements for the children.

3. They physically moved apart in December 2011 and were divorced in 2013.

4. Accordingly there was a committed relationship between the parties for at least

   
   

   24 years. The marriage formally endured for 21 years.

5. Over that period the husband was in continuous employment and his career consistently advanced.

6. For the wife there was work and study for the first half of the relationship, followed by full-time attention to the care of the two children. She also managed the investment properties held by each of the parties until 2011.

7. The wife has not been in any paid employment since 1999. The wife made enquiries about employment at a university. However she no longer wishes to work in a technical setting; she has been a Visiting Fellow. The wife is highly qualified but has not worked in her field since obtaining her doctorate. Her stated wish is to obtain full-time employment if possible, but there is no evidence of any particular employment being pursued.[9]

   [9] Affidavit of the wife filed 01/07/2014, par 242

The need to protect a party who wishes to continue that party's role as a parent

1. The evidence suggests that the parties were in accord about the wife applying herself full-time to the care of the children. The husband would perhaps have preferred the wife to work, but did not apparently wish to be at home with the children full-time.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. The husband currently pays Child Support of $423 per week and will continue to pay as assessed.

2. The wife met the children’s school fees from funds accumulated during the marriage from after separation until 2014. The husband has paid fees since.

Any other matter which the Court considers should be taken into account

1. There has been a great many applications by the wife and subsequent orders made about disclosure, including property owned by the husband in Country U.

2. In his first affidavit the husband did not address the issue.

3. In his second affidavit he said that since reading the wife’s affidavit, he had made enquiries about the particular property which the wife had referred to. He concluded:[10]

   I have travelled to [Country U] many times. I have not at any time been to or inspected the property referred to in the document. I was not aware I held an interest in the property or in any property in [Country U]. I am not aware as to circumstances in which the property was registered in my name.

   [10] Affidavit of the husband filed 19/06/2015, pars 39

4. The husband then went on to set out that he had now become aware, through that search, that a particular property in Country U had been transferred into the name of the husband’s brother, and that his share, which had been transferred, was equivalent to about $894.[11]

   [11] Affidavit of the husband filed 19/06/2015, pars 31-42

5. The husband then filed a third affidavit, days before this hearing commenced. In that affidavit, referring back to his second affidavit, he said this:[12]

   I wish to correct the [June 2015] affidavit.

   In addition to the property referred to at paragraphs 36 to 41 of my earlier affidavit, as far as I am aware, I am the registered owner of two other properties in [Country U] being:

   (a) Two bedroom unit in EE Street, City FF; and

   (b) 1/7 owner of property in the north of Country U.

   [12] Affidavit of the husband filed 16/07/2015, pars 4-5

6. The husband then went on to set out who had been living in the first property, his mother, and that a decision had been made amongst the seven adult siblings, of the which the husband is one, to transfer the property in the north to their late father’s foundation in accordance with his wishes. The husband estimated the current value of that property at about AUD$200,000.

7. The husband was most remiss, at best, to have waited until this time to make the enquiries about the extent of property he owned in Country U, knowing that it was not only a contentious issue, but the basis for many of the wife’s applications to the Court and for some of her heated allegations of misconduct by him in failing to make proper disclosure.

8. It has to be said that the wife was well aware that the husband owned at least some property in Country U; she referred to her first-hand knowledge of that fact in her affidavit. She had also been conscious when this matter was set down for hearing that she could litigate matters in Country U if she chose. The wife submitted that her efforts to make her own enquiries were likely to fail for reasons asserted by her about the legal limitations on wives conducting litigation in Country U.

9. I am not in a position to come to any conclusion about that; rather I note that the matter had been set down in 2014 for hearing in January 2015 on the basis of both parties being ready.   

Adjustment of Interests

1. I take into account the following matters in order of significance:

Husband’s State Super Pension

1. The pension for the husband from the State Super Pension presently pays $3,000 per week.

2. This superannuation income is a substantial matter for which adjustment should be made. It represents the majority of the adjustment in favour of the wife.

The income earning capacity of the husband

1. This matter is tempered by the fact that the husband is 62 years old and will likely retire in the next ten years or so.  His capacity is greater than that of the wife, not so much through qualification but though experience and continuing advancement.

2. The wife may study again and re-train in the economic aspect of her area of expertise. She adverted to this possibility in oral evidence. However she is
   54 years old and after such further study, is unlikely to compete equally with younger and more experienced colleagues. 

3. I am satisfied that she could find work if she chose to do so but is unlikely to do so until the younger child is at least in her teens.

4. The income disparity represents the balance of the adjustment almost entirely.

A significant contribution on behalf of the husband was made by his father and his extended family in Country U by the gift of money and the gift of a property, which formed a substantial part of the parties’ current wealth.

1. The evidence suggests that the husband’s six siblings were treated with equal generosity by their late father.  There can be little doubt that the husband came from a background of real wealth and the wife was aware of it, having spent time with his family in Country U on more than one occasion.

2. The evidence is that the husband relinquished his assets in Country U to his family in accordance with the wish of his late father and also for the benefit of family members in Country U. That is his choice, but it has had the effect of excluding the wife from any benefit from those assets.

3. By submitting as she did that she wanted none of the paternal family assets in Country U but simply wished to retain all the parties’ Australian assets, the wife was being quite unrealistic about who had established those family assets but was, in her own way, making the point about diminution.

4. This aspect is a minor consideration, minimal in financial terms, but still considered.

Conclusion  

1. Taking all those matters into account I consider that a substantial adjustment should be made to favour the wife, increasing her overall share of the asset pool from 35 per cent to 55 per cent:

   a)Each party retain the assets in their respective name and possession;

   b)The family home be sold and the proceeds divided in such a way that there is an overall division of the identified pool in a ratio of 55 per cent to the wife and 45 per cent to the husband; and

   c)The division of net proceeds of sale of the home equates to 65 per cent to the wife and 35 per cent to the husband, with some variation depending on the actual sale price and the cost of sale, including commission and legal costs.

4. Analysis of Whether the Adjustment Contemplated is Just and Equitable

1. The total net asset pool, including the jointly owned family home and excluding the husband’s State Super Pension, is $14,460,237.

2. Accordingly:

   a)   55 per cent is equivalent to $7,953,130; and

   b)     45 per cent is equivalent to $6,507,107.

3. For the wife to achieve 55 per cent of the theoretical net asset pool she will require a payment, at least theoretically, of $5,449,585 from the proceeds of the sale of the family home. This may be more or less depending on the actual sale price, after deduction of costs associated with sale.

4. This equates to approximately 65 per cent of the proceeds.

5. The wife will retain the following property:

Item	Assets	Value
2	Suburb N property	550,000
3	Suburb P property	820,000
4	1 Q Street	1,150,000
31	Motor vehicle 1	32,000
35	Household Contents	23,665
37	Jewellery	18,700
55	UniSuper	8,660
Total	2,603,025
PLUS cash payment TOTAL	5,449,585 8,052,610
Item	Description – Liabilities	Value
49	St George Portfolio	99,480
Total Net Assets (wife)	7,953,130

1. For the husband to achieve 45 per cent of the total net asset pool, he will require an overall payment, at least theoretically, of $3,030,415 from the gross proceeds of sale of the family home. This may be more or less in reality as stated above.

2. This payment equates to 35 per cent of the gross proceeds.

Item	Description - Assets	Value
5	Suburb H property	2,650,000
6	Suburb L property	1,650,000
7	Suburb J property	890,000
23 24	St George Acc St George Account	2,527 269
28	Bank of America Acc	15,226
29	BB&T Acc	28,432
30	Funds in Trust Acc	44,891
32	Motor vehicle 2	9,500
33	Motor vehicle 3	40,000
34 36	Motor scooter Household Contents	4,500 24,930
56	Unisuper	363,058
Total	5,723,333
PLUS cash payment TOTAL	3,030,415 8,753,748
Item	Description – Liabilities	Value
43	Loan #...	352,561
44	Loan #...	501,982
45	Line of Credit #6480	1,392,098
Total	2,246,641
Total Net Assets (husband)	6,507,107

Conclusion

1. I conclude that the proposed adjustment at the end of this long marriage, and even longer association, is just and equitable.

2. It fairly reflects the greater contributions made by and on behalf of the husband and those factors for which adjustment has been made in favour of the wife, most particularly in respect of the husband’s additional income from his State Super Pension and his capacity to earn income.

3. Orders are made accordingly

I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 April 2016.

Associate: 

Date:  29 March 2016