Granville and Granville
[2019] FCCA 42
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANVILLE & GRANVILLE | [2019] FCCA 42 |
| Catchwords: FAMILY LAW – Property – how much the wife should pay to the husband, if anything, in order to effect a just and equitable agreed property settlement structure. |
| Legislation: Family Law Act 1975, ss.75,79 |
| Cases cited: Stanford v Stanford (2012) FLC 93-518 Bevan & Bevan [2013] FamCAFC 116 |
| Applicant: | MR GRANVILLE |
| Respondent: | MR GRANVILLE |
| File Number: | MLC 7013 of 2016 |
| Judgment of: | Judge Small |
| Hearing dates: | 19 - 21 February and 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Matta |
| Solicitors for the Applicant: | Mathews Family Law |
| Counsel for the Respondent: | Ms Renwick |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ORDERS
Within 60 days of the date of these orders (“the due date”), the wife shall pay to the husband the sum of $111,187 (“the payment”).
Contemporaneously with the payment, the husband shall do all such acts and things and sign all such documents as might be necessary to transfer to the wife, at the wife’s expense, all his right, title and interest in the real property situate at and known as Property A in the State of Victoria, being all of that property more particularly described in Certificate of Title Vol … Folio … (“the Property A property”), and the wife shall indemnify and keep indemnified the husband against liability for all rates, taxes and outgoings of the Property A property whatsoever.
Contemporaneously with the transfer of the Property A property the wife shall do all acts and things and sign all documents as might be necessary to repay in full the loan to the ANZ Bank number … and to discharge the mortgage registration number … securing that loan.
In the event that the wife fails to make the payment by the due date, the parties shall do all such acts and things and sign all such documents as might be necessary to place the Property A property on the market for sale forthwith altogether out of court (“the sale”), and upon completion of the sale, the proceeds of the sale shall be distributed as follows:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Second to discharge the registered mortgage number … and any other encumbrance over the Property A property;
(c)Third so much of the payment as is then due to the husband together with interest at the rate of 8% (eight per cent) adjusted monthly from the due date to the date of payment; and
(d)The remainder to the wife.
Pending the transfer of the Property A property or the sale specified in paragraph 4 hereof:
(a)The wife shall have the sole right to occupy the Property A property;
(b)The wife shall pay all mortgage instalment payments, building and contents insurance premiums, rates, taxes and other like outgoings with respect to the Property A property as and when they fall due;
(c)The parties hold their respective interests in the Property A property on trust pursuant to these orders;
(d)The wife shall have the sole right to retain any rental income received from the Property A property; and
(e)Neither party shall encumber the Property A property other than in compliance with paragraph 3 hereof without the explicit consent of the other first having been obtained in writing.
The sale shall be conducted as follows:
(a)The parties shall jointly appoint a real estate agent to conduct the sale and in default of agreement they shall request the President of the Real Estate Institute of Victoria to appoint an agent on their behalf (“the agent”);
(b)The parties shall agree on a reserve price for the Property A property and in default of agreement the agent shall set a reserve price;
(c)The wife shall ensure that the Property A property is presented in good condition for inspection by potential purchasers; and
(d)Neither party shall consciously do any act or thing that has the consequence of minimising the sale price of the Property A property.
The wife shall retain all her right title and interest in:
(a)The real property situate at and known as Property B in the State of Victoria, being all of that property more particularly described in Certificate of Title Volume … Folio …;
(b)Her shares;
(c)Any bank accounts in her name or in which she has an interest, including the joint ANZ account held in the names of her and the husband; and
(d)Her entitlements in the Super Fund 1.
The husband shall retain all his right title and interest in:
(a)The real property situate at and known as Property C in the State of Victoria, being all of that property more particularly described in Certificate of Title Volume ...;
(b)His shares;
(c)His motor vehicle 1;
(d)Any bank accounts in his name or in which he has an interest save for any accounts held jointly with the wife; and
(e)His entitlements in the Super Fund 2.
The wife shall be solely liable for and indemnify the husband against:
(a)Any debts she owes to members of her family either in her name or jointly with any other person;
(b)Any credit card liabilities in her name; and
(c)All other present and future debts or liabilities held in the wife’s name.
The husband shall be solely liable for and indemnify the wife against:
(a)Any debts he owes to members of his family either in his name or jointly with any other person;
(b)Any credit card liabilities in his name;
(c)Any debts or liabilities of whatsoever nature or kind in respect of the husband’s motor vehicle 1 (including any arrears thereof) whether past present or future; and
(d)All other present and future debts or liabilities held in the husband’s name.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account shall be deemed the property of the wife;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation payments to which the other party is entitled to either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Granville & Granville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7013 of 2016
| MR GRANVILLE |
Applicant
And
| MS GRANVILLE |
Respondent
REASONS FOR JUDGMENT
Introduction
These were originally parenting, child support and property proceedings arising from the breakdown of the marriage between Mr Granville (“the husband” or “Mr Granville”) and Ms Granville (“the wife” or “Ms Granville”).
Parenting matters in relation to the child of the marriage, [X] born …2013 (“[X]” or “the child”), resolved by agreement on the first day of trial with Final Orders being made by consent on 21 February 2018.
The parties have also entered into a Binding Child Support Agreement in relation to financial support for [X].
Thus the only remaining issues to be decided at trial related to the parties’ property.
The particular issues and sub-issues to be decided in this case, as in any property matter, are as follows:
A.Whether it is just and equitable to alter the property interests of the parties.
B.If it is just and equitable, what are the property interests of the parties and what is their value?
(i)Whether the sum of $165,000, which the husband says the wife had in her bank account at the date of separation, should be “added back” to the pool;
(ii)Whether the monies advanced to the husband in the sum of $50,000 from his mother, which was applied to the deposit of the property at Property C in which the husband holds a half share (“the Property C property”), are subject to an enforceable loan agreement;
(iii)Whether the wife’s parents loaned her the sum of $99,187, and if so, was any of that sum applied to the purchase of the parties’ property at Property A (“the Property A property”)?
(iv)Whether the proceeds from the husband’s sale of shares in Shares should be “added back”;
(v)Whether the husband made payments to members of his family during and after the marriage which ought to be “added back”.
C.What were the parties’ contributions to the property?
D.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
(i)How should the husband’s remuneration benefits be classified?
E.In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
(i) Should the property be divided as to 70% to the wife and 30% to the husband (as submitted by the wife), or 52.5% to the wife and 47.5% to the husband (as submitted by the husband)?
At trial, the structure of the property settlement, that is, which party was to retain which assets, was essentially agreed between the parties, and the only real issue for decision was how much money the wife should pay to the husband (if any) as a final settlement.
Background
Mr Granville was born in Country A on …1977 and is therefore now 41 years of age.
He has lived in Australia since 1980, save for the periods of 2011 to 2015, when he lived and worked in Country B , and 2015 to 2016, when he lived and worked in Country C.
He is an Australian citizen, and is employed by Employer as a professional. At the time of trial, he lived in Perth in rental accommodation. His taxable income was said to be between $181,000[1] and approximately $291,000 gross per annum when bonuses are included[2].
[1] All monetary amounts throughout these Reasons are rounded to the nearest dollar for ease of calculation
[2] It is the wife’s evidence that Mr Granville’s income for child support purposes is calculated to be $271,913 for the period 1 January 2018 to 19 February 2019.
Ms Granville was born in Melbourne on …1980 and is therefore aged 38 years of age. She lives with her parents in Suburb D where she pays board.
At the time of trial, she worked as a professional with the Employer on a contractual basis. Her taxable income was approximately $144,000 gross per annum.
The parties were married on …2010 and commenced cohabitation from that date. They separated on 29 March 2016. Their marriage for the purposes of these proceedings lasted approximately 5 years and 5 months. The parties are not yet divorced.
[X] is their only child.
Pursuant to very comprehensive and detailed Final Orders made on 21 February 2018, [X] lives with the wife and spends time with the husband every third weekend from Thursday through to Sunday, for portions of all school holidays and for special occasions. The child commenced Prep at Primary School in Suburb D in 2018.
Procedural History
The proceedings commenced in the Federal Circuit Court of Australia with the husband filing an Initiating Application, Affidavit and Notice of Risk on 27 July 2016. That Application related only to parenting matters.
The wife filed a Response, Affidavit in Support and Financial Statement on 8 September 2016 and a Notice of Risk on 12 September 2016. That Response sought parenting, property and child support orders.
I note that in relation to property matters, the wife sought only that “there be an alteration of property interests such as this Honourable Court deems just and equitable”.
Orders were made on 13 September 2016 placing the child on the Airport Watch List for three years. The parties were ordered to attend a section 11F Child Inclusive Conference on 19 December 2016. The parties also agreed to attend upon Mr K for the preparation of a Family Report. The matter was otherwise adjourned for Mention on 19 December 2016 and for Final Hearing on 19 February 2018 for an estimated hearing time of three days.
On 29 September 2016, the husband filed an Amended Initiating Application, the only amendments being that “there be a settlement of property between the husband and the wife that this Honourable Court considers just and equitable”, and that the wife pay his costs of the proceedings.
I note, therefore, that at that stage, and indeed right up until the parties filed their trial documents, the Court did not know what final property orders either party was seeking.
That is a failing of their solicitors to properly complete their documents, and it has become somewhat of a habit among Victorian solicitors. In my view, it is simply “lazy lawyering”, as, even if the full extent of the property pool might not be known at the time of filing, the client will have provided instructions as to contributions and matters arising under s.75(2) or s.90SF(3) of the Act, and the solicitor ought to be able to advise as to what percentage of the property his/her client is seeking.
The wife filed an Application in a Case and Affidavit in Support on 8 December 2016 with respect to the time the husband was to spend with the child, and further interim parenting orders were made by consent on 19 December 2016.
The husband filed a further Amended Initiating Application and Affidavit in Support on 7 March 2017, that Application amending only the parenting orders he sought.
On 8 March 2017, the husband filed the Family Report of Mr K dated 19 December 2016, that report being annexed to an Affidavit sworn by Mr K on 7 March 2017.
The wife filed a Further Amended Response, Affidavit in Support, Application in a Case and Affidavit in Support on 10 March 2017, that Response amending only interim property orders sought.
On 27 November 2017, the husband filed the Affidavit of Dr L, annexed to which was Dr L’s psychological report in relation to the paternal grandfather.
The husband filed an Application in a Case and Affidavit in Support on 4 December 2017, that application relating to parenting matters.
On 6 December 2017, the father filed an updated Family Report annexed to an Affidavit sworn by Mr K on 5 December 2017.
Further interim parenting orders were made by consent on 11 December 2017.
The husband filed a further Amended Initiating Application addressing both parenting and property orders, an Affidavit in Support, a sworn Financial Statement, and a Notice to Admit Facts on 5 February 2018.
The wife filed a further Amended Response and Affidavit in Support on 5 February 2018.
Final parenting orders were made by consent on 21 February 2018.
The trial of the property applications ran on 20 and 21 February 2018.
At the commencement of the trial, several passages from the Affidavits of both the husband and the wife were struck out on the application of the other party’s counsel and after hearing submissions of both counsel. Other paragraphs which were the subject of those applications were not struck out.
Witnesses were the husband and the wife, and both were subjected to cross-examination by counsel.
At the end of the evidence, the proceedings were adjourned to 2 March 2018 for final submissions.
After submissions by both parties’ counsel on 2 March 2018, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial on 20 and 21 February 2018 and the submissions made on 2 March 2018, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
A. Whether it is just and equitable to alter the property interests of the parties
This question arises from the operation of s.79(2) of the Act, which states that a Court may only make orders adjusting the property interests of married parties if it is just and equitable to do so.
In Stanford v Stanford[3] the High Court of Australia stated, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
[3] Stanford v Stanford (2012) FLC 93-518.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” coming before this Court, and therefore I find that it is just and equitable to alter the parties’ property interests.
I note, in this context, that the parties are agreed that there should be an alteration of their property interests, and are even agreed on the structure of that alteration. The issue in dispute is whether that alteration should include a payment by the wife to the husband in order to effect a just and equitable settlement.
B. If it is just and equitable, what are the property interests of the parties and what is their value?
The property interests of the parties as alleged at the beginning of the trial may be set out thus:
Assets
Owner
Value
Property A (“the Property A property”)
Joint
$535,000
Property C (“the Property C property”)
husband (50% interest)
$485,000
Property B (“the Property B property”)
wife
$615,000
Funds held on trust by husband’s lawyers
husband
$30,652
ANZ Account …
husband
$393
ANZ Account …
husband
$4925
Shares E
husband
In dispute (W says $9893; H says $414)
Motor Vehicle
husband
In dispute (W says $75,320; H says $55,000)
ANZ Account
Joint
$10,310
Funds held on trust by wife’s lawyers
wife
$35,000
CBA Account
wife
In dispute (W says $21,577 – H says $46,424
NAB Account
wife
$6499
ING Account
wife
In dispute (W says $81,306 – H says $93,135)
Shares F
wife
$5770 (H)
CBA Account
husband
317 (W)
CBA Account
husband
$88 (W)
HSBC Accounts (Country C)
husband
$183,930 (W)
ANZ account (ending …)
husband
$13,670 (W)
ANZ Bank account
Joint
$10,310
Monies withdrawn by husband on 29 March 2016
husband
$90,000 – value of Motor Vehicle
Household contents
husband
$10,000
Liabilities
Loan from wife’s parents
wife
In dispute (W says $99,186)
Mortgage over Property C property
husband
$164,392 (W) $142,500 (H)
Mortgage over Property A property
Joint
$156,444
ANZ Credit Card
husband
$563
Monies advanced by husband’s mother
husband
In dispute – H says it was a loan $50,000
Superannuation
husband
$181,943
wife
$128,772
Property pool issues in dispute
(i) Whether the sum of $165,000, which the husband says the wife had in her bank account at the date of separation, should be “added back” to the pool
At the commencement of the trial, Mr Matta, for the husband, stated that at the time of separation the wife had an ING bank account with a balance of approximately $165,000[5]. He submitted that that amount should be “added back” to the property pool if the $90,000 the husband withdrew from the parties’ mortgage account on the date of separation is also to be “added back”. It was his submission that the husband would accept an “add-back” of that $90,000 only if the wife accepted an “add-back” on her side of $165,000. What was good for the goose, said Mr Matta, was good for the gander.
[5] Mr Granville deposes that he understands this to be the case in his Trial Affidavit affirmed and sworn on 5 February 2018 at paragraph 41(5)(b).
Ms Renwick, for the wife, pointed out that on the balance sheet provided by the husband, which Mr Matta had submitted the court “must adopt” for the purposes of the trial, the value of the wife’s ING account was stated to be $51,906.
The relevant part of the wife’s evidence – in – chief in relation to this issue is as follows, these questions being asked in relation to the husband’s affidavit evidence:
Ms Renwick: There is the ING direct account which has a balance, and alleged balance, of 93,135. Is that balance correct?
Ms Granville: No. That’s not correct. What was the date of that affidavit, did you say?
Ms Renwick: 5 February 2018.
Ms Granville: Yes. No. No, that’s not – that’s incorrect.
…….
Ms Renwick: What is ---
Ms Granville: I think it’s about 40 – something in the CBA but my ING is less than that.
Ms Renwick: What is the balance?
Ms Granville: At right now, it’s 51,000.
In relation to the balance of the ING account at the date of separation, Ms Granville did not give a figure during her evidence-in-chief, but stated that the balance included monies she had reserved to pay income tax of $42,000 that she owed as a sole trader at that time.
Under cross-examination, Ms Granville denied that her husband had not known about the existence of her ING account during the marriage, or that he had not understood that she had accumulated savings in it. She said that while the parties “didn’t discuss our finances”, Mr Granville knew that her salary had gone into her NAB account and that any savings after expenses had been paid into her ING account. She said he had “always known that”.
Her counsel tendered a document evidencing an email trail between the parties from 2010 which mentions the need for Ms Granville to provide statements from her Westpac, NAB and ING accounts to the ANZ bank for the purposes of obtaining a mortgage loan for the purchase of the Property A property.
Ms Granville conceded that she had not mentioned her ING account in her response to a Notice to Admit Facts filed by the husband on 5 February 2018, but I am satisfied, on the basis of the material tendered, that Mr Granville had access to information about the existence of his wife’s ING account before their marriage in late 2010.
Under cross-examination, Ms Granville further conceded that there was “probably” “around” the amount of $165,000 in her ING account at the date of separation.
Ms Granville confirmed her evidence in chief that she had paid her tax debts, including one payment of $43,000[6], from that account (via her NAB account) since the date of separation.
[6] I note that in her evidence-in-chief Ms Granville stated that the tax debt had been $42,000 while under cross-examination it was $43,000 but I do not think anything turns on that discrepancy.
Mr Matta called for a ING or NAB bank statement evidencing deductions from the wife’s account to pay tax and for her Notices of Assessment evidencing that debt.
During his closing submissions Mr Matta stated that that call had been answered and that he had viewed at least one of the documents. However, they were never tendered in evidence.
What that means is that the only actual evidence the court has is the affidavit and oral evidence of the parties.
It was the wife’s evidence that there was approximately $165,000 in the ING account of separation, that she spent much of those monies on legal fees and taxation debts, including one payment of $43,000, and that there was, at the time of trial, the sum of $51,000 in that account. She said that the remainder of the monies had been spent on living expenses for her and [X] in circumstances where the husband had not been paying his share of the mortgage on the Property A property, and his child support for [X] had been sporadic. That evidence was not diminished under cross-examination, and in those circumstances I would not consider that the sum of $165,000 ought to be “added back” to the property pool at this stage of the Court’s consideration.
I will, however, consider the monies paid in legal fees from that sum when considering the matters set out under s.75(2) of the Act and more particularly, under s.75(2)(o), although those monies are unquantifiable.
In his closing submissions however, Counsel for the husband made the following major concession in relation to the balance sheet (or net pool of assets) relied on by the husband:
Counsel: what we have done in the second balance sheet is made significant number of concessions. We only put in current values. I’m not asking your Honour to add back anything on the ING account.
In those circumstances, there is no need for me to make a finding on this issue at this stage of my considerations, but I will still consider the matters above under s.75(2)(o).
(ii) Whether the monies advanced to the husband in the sum of $50,000 from his mother, which was applied to the deposit for the purchase of the property at Property C in which the husband holds a half share, is an enforceable loan
The husband deposes that his mother, Ms M, loaned him the sum of $50,000 in 2005, which he applied to the deposit for the purchase of the Property C property, upon which a house was built. He says that he must pay that money back to his mother upon the sale of the Property C property, whenever that might occur.
I note that his parents have occupied the Property C property since the house was completed on it in about 2007.
In support of his claim, the husband annexes to his Trial Affidavit, sworn and filed on 5 February 2018, a copy of an agreement between him, his sister and his mother which is undated and unsigned, although a signed and dated version was said to have been provided to the wife’s counsel at trial. I note the filing of the annexure document was the first time any supporting evidence in relation to the husband’s purported loan from his mother had been provided by the husband.
The signed and dated version of the agreement was not tendered at trial, although counsel for the husband told the court that he had shown or emailed the signed and dated copy to counsel for the wife, stating that it had been signed in 2013, some eight years after the loan was advanced.
Given that the signed and dated document was never tendered in evidence, I do not think it can hold much weight, but if I am wrong on that issue, I will consider its terms.
That document states, under the heading “RECITALS”:
A.Mr Granville and Ms N have purchased the property in their names.
B.To enable them to complete the purchase of the property[7] they requested Ms M[8] to contribute Ms M’s Equity to assist in payment of the purchase price.
C.Ms M agreed to contribute Ms M’s Equity on the terms of this agreement which provide for her to be entitled to a particular share of the equity in the Property.
“Ms M’s Equity” is defined in the section headed “Definitions” as “the sum of fifty thousand dollars ($50,000.00)”.
[7] Defined as “the property situated at and known as Property C” in the section marked “OPERATIVE PROVISIONS”
[8] The husband’s mother Ms M, as defined in the section marked “PARTIES”
Under the heading “MS M’s EQUITY”, the document states:
2.1 Amount of Equity
Ms M contributed the sum of $50,000 toward the purchase price and additional fees associated with purchasing the Property and shall be entitled to a beneficial interest of 45% in the Property. Mr Granville and Ms N contributed the balance of the equity required to purchase the Property after borrowings were advanced by ANZ Banking Group Ltd (ANZ) and secured over the property.
2.2Repayment of Ms M’s Equity
Ms M’s Equity of 45% in the property shall be paid to her at such time as the Property is sold or such earlier time as Mr Granville and Ms N at their option or discretion may choose to repay Su’s Equity to her.
2.3No Further Borrowings
Mr Granville and Ms Granville shall not borrow against, draw down against or secure against the Property any additional monies without the consent in writing of Ms M.
Neither the husband’s mother nor his sister Ms N (“Ms N”) provided any Affidavit or oral evidence in these proceedings, and the husband’s mother was not joined to the proceedings as a putative beneficial owner of the Property C property on the basis of the monies advanced and/or the agreement.
I note that the word “loan” appears nowhere on the document annexed to the husband’s Trial Affidavit, save for when it refers to the loan from the ANZ Bank obtained by the husband and his sister by way of mortgage. The document itself is simply titled “AGREEMENT”.
I note further that there is no indication on the document that the monies advanced were for the benefit of the husband alone.
Given the terms of the agreement document, where for the payment of $50,000, the husband’s mother is to receive a 45% interest in a property which other evidence of the husband said was purchased for $500,000, it is difficult to see how the advancement of the $50,000 in 2005 constituted a loan of any kind.
At trial, counsel for the husband said that if the wife had sought to set aside the loan agreement, the husband’s mother would have been joined to the proceedings. It was counsel’s case that the wife did not seek to set aside the loan agreement, but that she asked the court to declare that the loan was not enforceable, in which case, it can only be considered a contribution by the husband. In those circumstances, said counsel, it was not necessary to join the husband’s mother.
I accept that it might not have been necessary to join the husband’s mother to the proceedings in order to decide this issue, but it would have been helpful for the court to have seen some evidence from her to support the husband’s claim that the monies advanced to him at the time of purchase of the Property C property took the form of an enforceable loan.
In oral evidence at trial, Mr Granville said that he had taken out two loans for the purchase of the Property C property: one of $350,000 from the bank, and the other of $50,000 from his mother, which was used to pay his share of the deposit.
He said, under cross-examination, that he could not remember exactly how much he had personally contributed to the purchase of the Property C property, but stated that the difference between his contribution and the amount he needed to pay for his share of the deposit and stamp duty was $50,000, and that “my parents loaned me” that money.
When pressed, Mr Granville said that he thought his own contribution to the initial purchase of the Property C property was “50 to 70 thousand on my side”. He acknowledged that he had no proof of that contribution, but he was clear that it was he and his sister Ms N who had purchased the property with the assistance of their parents, and not their parents who had purchased the property but registered it in his and his sister’s names.
However, when further asked, on the second day of his evidence, about monies he had paid for the Ms N property, he said the following:
…there are loans for the Property C property, a 350K loan and a 50K loan. There was a personal loan that was taken. That was used to pay for the – the – the deposit, 20 per cent, half of it, as well as stamp duty, my half of that, and the wedding costs and the engagement costs, and the wedding rings that we – that I purchased.
Given that the Property C property was purchased in 2005, and that the parties married in 2010, it would appear that Mr Granville has confused the monies he obtained for the Property C property purchase with those obtained for the Property A property purchase just prior to the marriage. However, other evidence elicited from him made clear that he had borrowed the sum of $140,000 as a personal bank loan in order to make his initial contribution to the purchase of the Property A property in 2010, that loan being secured by the Property C property. I will return to that loan when considering the parties’ initial contributions to their property.
In his closing submissions, Mr Matta, for the husband, stated that the husband was not obliged to call his mother to give evidence of the enforceability of the loan because there was a loan document to evidence its existence. He submitted that one doesn’t call parties to a loan when there is written evidence of the loan.
However, once the wife’s counsel called for the signed and dated copy of the “loan agreement”, no more was heard of it during the trial, although Mr Matta stated in closing submissions that he had provided the document to the wife’s counsel. There is, therefore, no written evidence of an executed document of agreement between the husband and his mother in relation to the advancement of the $50,000 before the Court at all.
I note that when loans are alleged to exist in proceedings such as these, loan documents produced in evidence are usually those provided by a bank or other financial institution. Those documents by their very nature hold more weight as evidence of loans than a properly executed private Agreement between a party and a family member. In this case there is no properly executed Agreement before the Court, and the unexecuted Agreement is found not to be a loan agreement on its terms in any event.
In all those circumstances, and despite counsel’s submission that the existence of the document alone is evidence of the enforceable loan, I find that the monies advanced to the husband towards the deposit on the Property C property in 2003 were half of the $50,000 advanced by his mother, the other half being advanced to his sister as equal tenant-in-common of the Property C property.
That is, I consider that the amount the husband indirectly contributed to the purchase of the Property C property by way of monies advanced by his mother in 2003, was $25,000 and that that advance is not an enforceable loan, but a contribution to the property by the husband for the purposes of these proceedings.
(iii) Whether the wife’s parents loaned her the sum of $99,187 and if so, was any of that sum applied to the purchase of the parties’ property at Property A (“the Property A property”) or any other property of the marriage?
The evidence adduced from the wife at trial made it clear that she does not consider herself to have a legal duty to repay monies advanced to her by her parents before and during the marriage, although she considers it a moral duty for her to do so.
In the absence of any other evidence about these purported loans, I find that those advancements were gifts and thus, to the extent that they were applied to the purchase of the Property A property, they constitute contributions to the parties’ property by the wife.
(iv)Whether the husband sold shares in Shares E and if so, whether the proceeds should be “added back”
In his first Financial Statement affirmed and filed on 29 September 2016, the husband declares that he owns 275 shares in “Shares E” and that they are worth $8745.
In his Financial Statement affirmed and filed on 5 February 2018, the husband deposes that he has sold 38 “Shares E” over the previous 12 months for the sum of $22,960, of which, he says, $9184 has been assigned to pay Capital Gains Tax (“CGT”) on that sale.
When asked why he had needed to sell those shares in circumstances where he was earning some $300,000 in salary and benefits, it was his evidence that he had applied those monies to his legal fees in these proceedings.
I note that the above figures simply do not add up. That is, unless the “Shares E” shares and the “Shares E” are not shares in the same entity.
If they are the same shares, then on the husband’s evidence, they were worth $31.80[9] each on 29 September 2016, and $604.21[10] each on 5 February 2018. That simply does not seem possible, so I can only surmise that Shares E and Shares E are separate entities.
[9] $8745 divided by 275 = $31.80
[10] $22,960 divided by 38 equals $604.21
As noted above, the date of separation was 29 March 2016.
There was no evidence placed before the court as to what any shares owned by the husband on that date were worth.
In her final submissions, Counsel for the wife submitted that I should notionally “add back” to the property pool the full value of the Shares E shares – that is $22,960. However, upon further probing of what she meant by that, Ms Renwick submitted that rather than “adding back” the $22,960, I should simply take it into account under s.75(2)(o) of the Act, which I shall discuss later in these Reasons.
This is a difficult issue, as it is not certain whether the Shares E shares were acquired before, during or after the marriage.
In those circumstances, and there being no evidence about the amount of CGT payable on the sale other than what the husband declares in his Financial Statement affirmed and filed on 5 February 2018, I intend to consider that he has had the benefit of an amount of $13,776[11] since the date of separation, but I will not add that amount back to the property pool to be divided. I will consider his use of those monies under s.75(2)(o) of the Act later in these Reasons.
(v) Whether the husband made payments to members of his family during and after the marriage which ought to be “added back”.
[11] $22,960 - $8194 = $13,776
It was the husband’s evidence that his parents had made regular payments towards the mortgage and other outgoings of the Property C property from about 2008 until he had returned to live in Australia in 2016, those payments amounting to some $1700 per month.
It was his view that since he was now staying at the property when he was in Melbourne every 2½ weeks or so, and for half of all school holidays, so that he could have somewhere appropriate to spend time with [X], he did not think it appropriate for his parents to continue to pay for their use of the property.
He stated that he assumed all responsibility for the mortgage loan over the Property C property at that time (that is in 2016) because he was occupying the property sometimes and was thus “preventing (his sister) from renting it out”. The fact that his (and her) parents were living at the property and paying for outgoings other than the mortgage did not appear to him to have any relevance in that regard, and I found his reasoning about that issue to be flawed.
I therefore consider his liability for the Property C mortgage to be shared equally with his sister as he is making the whole of the repayments by choice.
Nevertheless, I will consider the circumstances of those payments under s75(2)(o) later in these Reasons.
Mr Granville’s evidence at trial was that since the date of the parties’ marriage in …2010, he had received various lump sums from his employer – relocation expenses and the like – which he had used to substantially reduce the mortgage over the Property C property.
Under cross-examination by counsel for the wife, Mr Granville was asked about several of those payments, and his responses were somewhat evasive, as shown in the following exchange between him and counsel for the wife in relation to the 2015 Property C mortgage bank account statements later tendered in evidence:
Ms Renwick: And if I can turn you to page 2 of 3 and the deposit on 1 April in the amount of $83,489 transfer reference ….
Mr Granville: Yes.
Ms Renwick: Now that’s a deposit from you, isn’t it Mr Granville?
Mr Granville: I will need to have a look at that transfer reference – where it came from.
Ms Renwick: Well, we’ve just been talking about you, your sister, your mother and your father, and from what you’ve been saying it doesn’t sound like 83,489 would be coming from them.
Mr Granville: Yes. Yes, I agree. I need to have a look and work out exactly where that came from – which account it came from.
Ms Renwick: From your account, though?
Mr Granville: I would like to confirm which account it came from, yes.
Ms Renwick: Well, Mr Granville, this is a statement where, essentially, 84,000 has been deposited into. You would know, wouldn’t you, if you deposited 84,000 into an account?
Mr Granville: Three – three – three years ago – three years ago.
Ms Renwick: Yes. Mr Granville, did you pay the 83,489?
Mr Granville: I would need to have a look at that transaction and the associated account it came from to confirm that.
The husband’s response in relation to further deposits to the Property C mortgage account of $5643.15 on 20 November 2014, $18,593.94 on 1 December 2014, $5704.32 on 19 December 2014, $5433.95 on 21 January 2015, $6088.47 on 19 March 2015, $5817.30 one 21 April 2015, and, $5400.03 on 22 August 2015, and $44,047.62 on 25 August 2015 was in similar vein – that he would need to look at the transactions to discover where those moneys had come from in circumstances where it was highly improbable that they had come from any bank account but his own. I note that all of the above payments, amounting to a total of $180,217.78, were deposited into the Property C mortgage during the marriage.
As those funds were earned during the marriage, they are considered to be joint funds which could have been used for joint purposes such as the reduction of the Property A mortgage, rather than in reduction in the Property C mortgage from which only Mr Granville benefited and will benefit in future[12].
[12] In this context I note that under the agreed structure of the property settlement in this matter Mr Granville will retain the Property C property.
Again, rather than “add back” those sums to the property pool, I will consider the fact that Mr Granville has had the sole benefit of those joint funds under s.75(2)(o) of the Act later in these Reasons.
Decision Issue B
The effect of the above findings is that that the property pool for distribution between the parties at the time of trial is as follows:
| Assets | Owner | Value |
| Property A (“the Property A property”) | Joint | $535,000 |
| Property C (“the Property C property”) | husband (50% interest) | $485,000 |
| Property B (“the Property B property”) | wife | $615,000 |
| Funds held on trust by husband’s lawyers | husband | $30,652 |
| ANZ Account … | husband | $393 |
| ANZ Account … | husband | $4925 |
| Shares E | husband | $414 |
| Motor vehicle | husband | $55,000 |
| ANZ Account | Joint | $10,310 |
| Funds held on trust by wife’s lawyers | wife | $35,000 |
| CBA Account | wife | $21,577 |
| NAB Account | wife | $6636 |
| ING Direct Account | wife | $51,906 |
| Shares F | wife | $3430 |
| Total Non-Superannuation Assets | $1,855,243 | |
| Liabilities | ||
| Mortgage over Property C property | husband | $142,500 |
| Mortgage over Property C property | Joint | $156,444 |
| ANZ Credit Card | husband | $563 |
| Total Liabilities | $299,507 | |
| Total Net Assets | $1,555,736 | |
| Superannuation | husband | $181,943 |
| wife | $128,772 |
C. What were the parties’ contributions to the property?
This question is mandated by s.79 of the Act, which states that in order to decide what orders to make that are just and equitable in all the circumstances, the Court must consider the parties’ respective financial and non-financial contributions to the “acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them”[13] and to “the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[14].
[13] S.79(4)(a) and (b)
[14] S.79(4)(c)
Initial contributions
At the commencement of the marriage in October 2010, the husband deposes that he held a 50% interest in the Property C property worth about $345,000 with a mortgage liability, he says, of about $180,000. He owns that property with his sister Ms N. At the time of trial, his parents were living in the Property C property.
At trial, he was forced to concede under cross-examination that at the date of the marriage,[15] he also had a liability of $140,000 in the form of the bank loan he obtained in order to fund his share of the wedding expenses and the purchase of the Property A property, that loan being secured by his interest in the Property C property.
[15] I note that these parties did not cohabit before the date of their marriage.
Therefore, the net equity he brought into the marriage in the form of his interest in the Property C property, was fairly minimal.
The wife owned the Property B property, which she had purchased in 2003 for $237,000, and which at the date of the marriage was unencumbered and worth about $420,000. She also owned about 1000 Shares F which, she says, her parents bought for her well before the parties met.
It is the wife’s evidence that her parents contributed the sum of about $84,690 to the purchase of the Property B property and that she will eventually need to repay those funds.
She deposes that her parents also paid $17,966 towards her share of the deposit on the Property B property, which she also says she will have to repay.
However, I have found that while Ms Granville feels a moral duty to repay those sums, she is under no legal obligation to do so, and those sums are considered to have been indirect contributions made on her behalf.
It is clear then, that the wife’s initial financial contributions to the parties’ property were significantly greater than those of the husband.
Contributions during the marriage
Just before their marriage, in 2010, the parties purchased the Property A property, which was registered in both names, for $502,000. The purchase price was made up of a deposit for which each party paid half, assisted by their parents, and a mortgage of $400,000.
It was the evidence of both parties that they had kept separate bank accounts throughout the marriage, with only the mortgage offset account and the mortgage loan account being in joint names.
Their salaries, when they were working, were deposited into their separate personal accounts and from those accounts they made payments to the mortgage offset account from which the mortgage loan was paid.
It is the wife’s evidence that the parties paid the mortgage instalment repayments equally until June 2015, when the husband stopped making those payments for reasons unknown to her.
They lived at the Property A property until …2011, when the husband moved to Country B where he had been transferred by his employer.
The Property A property has been tenanted since November 2011, first to the husband’s sister Ms O, and then to third party tenants, with the rent being deposited to the parties’ mortgage offset account.
The rent from the tenants, minus the agent’s fee and other expenses to do with the lease, was deposited into the mortgage offset account and then to the mortgage loan account and there was a shortfall of about $400 per week, which the parties paid equally.
The wife took leave of absence without pay from her employment from …2012 and during that time, lived with the husband in Country B. When she returned to Melbourne in …2012, she continued to work at Employer until …2013, when she took two years’ maternity leave, returning to Country B with [X] in …2013.
It is the wife’s evidence that she did not make any regular payments on the mortgage loan while she was not working, but that she made an extra payment of $15,000 in 2012 which “repaid” the amounts she would have been paying if she had been working between …2012. I note that, on her evidence, she was not working until …2012 and then left to go on maternity leave in …2013.
Nevertheless, Ms Granville tendered at trial a copy of statements from the ANZ account into which the parties deposited their mortgage contributions, which showed that between 2 February and 30 March 2012, she deposited sums totalling $7,636.10, of which $2,636.10 were regular mortgage payments and $5000 is marked as an “EXTRA PAYMENT” from her. Between 1 June and 31 July 2012, she deposited no regular payments, but there was one lump sum payment of $10,000 made on 31 July 2012 and marked “EXTRAREPAYMENT” in her name.
I am therefore satisfied that those payments were made and that they were made by Ms Granville. That is, that she continued to contribute to the Property A mortgage between February and July 2012 despite the fact that she was not working.
The wife was not able to work while the parties were living in either Country B or Country C as she did not have a working visa. However, she made homemaker and parent contributions during that time.
In …2015, the wife and [X] returned to Melbourne, where the wife had obtained a 6-month contract with Employer. She and [X] lived with her parents in Suburb D at that time as the Property A property was tenanted, and the wife deposes that she paid a total of $30,000 to the mortgage in extra payments between July and October 2015. Again, she says, those payments made up for the payments she would have made between March 2013 and July 2015 when she was not working, and she deposes that those payments were taken from her redundancy payment. Documentary evidence for the payment of those monies, in deposits of sums between $5,000 and $10,000, was tendered at trial in the form of further bank statements.
Ms Granville had received a redundancy package of $59,330 in February 2015, although she deposes that she did not apply any of those monies to the parties’ property, despite some pressure from the husband to do so, as she needed to pay [X]’s child care costs and other expenses until June 2015, when she received her first pay after obtaining work with Employer[16]. She was still working at Employer on contract at the time of trial.
[16] I note that this evidence is in contradiction to the evidence she gave about her use of the redundancy payment as set out in the previous paragraph. That discrepancy was not resolved at trial. I am nevertheless satisfied that Ms Granville contributed those monies either to repayments on the parties’ mortgage loan or to the welfare of the family.
In September or October 2015, the husband’s Country B contract expired and he moved to Country C, again at the request of his employer, and the wife and [X] remained in Melbourne, where the wife had had her contract extended.
The marriage ended on 29 March 2016 when the wife advised the husband that she was separating from him.
While the husband was living overseas, he returned to Melbourne fairly frequently, especially after [X] was born. After separation, he returned to Australia in mid-2016 and settled in Perth, still working for Employer.
On the above evidence, I find that the wife made slightly more contributions during the marriage, as she was making financial contributions to the Property A mortgage even when she was not working, and, in circumstances where the husband was working overseas for significant periods and she was looking after [X] in Australia for much of that time, she made most of the parenting and homemaker contributions.
Post-separation contributions
It is the wife’s evidence that upon her informing him that the marriage was over, the husband “immediately” withdrew $90,000 from the parties’ mortgage redraw facility without her knowledge or consent and that those monies were transferred to an account operated by Ms N.
Further, she states that the husband’s sister Ms O, who had been renting the Property A property in the parties’ absence, had failed to make full rental payments, and when asked about that in July 2016, the husband’s sister said that she had made an arrangement with the husband. When he was asked about that situation, the husband told the wife that certain property maintenance expenses had been paid by his sister and offset against the rent. The wife says she never saw any evidence of those expenses having been paid by the husband or his sister.
The wife deposes that between 2 October 2010 and 27 May 2016, the financial situation in relation to the Property A property was as follows:
Rental income $109,372
wife’s deposits to mortgage offset account $ 66,876
wife’s withdrawals from offset account Nil
husband’s deposits to mortgage offset account $ 49,535
husband’s withdrawals from the offset account for
his own purposes -$22,209
husband’s transfers to the parties’ offset account -$16,000
husband’s withdrawal from the redraw facility -$90,000
The wife does not appear to have been asked any questions about that evidence at trial, save for those in relation to the husband’s withdrawal of the $90,000 at separation.
It is her evidence that the husband paid no contributions to the mortgage between mid-2015 and March 2017, when he was forced to do so by court order.
Ms Granville says that the tenants pay $2499 per month for the Property A property and that the property expenses are deducted from this amount, “including water, body corporate, maintenance and agent fees”.
She deposes that the mortgage repayment is $2636 per month and that after the property expenses are deducted from the rent, the shortfall left to the parties to pay is about $400 per month.
It is her evidence that she has paid her half of the mortgage expenses for the Property A property consistently since the parties purchased the property, save for the periods during which she was not working as set out above.
The husband does not deny that on 29 March 2016 he withdrew $90,000 from the parties mortgage offset account. It is his evidence that those monies were used to purchase a motor vehicle which, he deposes, cost $92,000.
The husband further says that in order to fund the full purchase cost of the motor vehicle he was forced to borrow further monies from his family because he had spent significant amounts of the $90,000 he withdrew from the parties’ mortgage offset account on his legal fees.
I note that at trial, the wife tendered a copy of Matthews Family Law’s trust ledger, showing that Mr Granville paid some $163,524.68 to Matthews Family Law between 8 April 2016 and 13 February 2018.
The motor vehicle was valued at $55,000 for the purposes of these proceedings, and I find that it is highly likely that the remainder of the $90,000 was spent either on the purchase of the motor vehicle or on Mr Granville’s legal fees.
In any event, there is no dispute that Mr Granville has had the benefit of that $90,000 of joint funds to the exclusion of Ms Granville. That fact diminishes the contributions he claims to the Property A property.
Decision Issue C
Based on the wife’s greater initial contributions to the parties’ property, on her slightly greater contributions throughout the marriage by way of homemaker and parent contributions, on the husband’s withdrawal of $90,000 on the day of separation, on his payment of joint monies towards the Property C mortgage for his sole benefit, and on his failure to pay his share of the Property A mortgage between mid-2015 and March 2017, I find that the parties overall contributions to their property fall 55% to the wife and 45% to the husband.
D. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e) of the Act.
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the parties are of similar age and in good health.
Each has the capacity for gainful employment, although the husband’s current income is higher than that of the wife. His income includes an annual bonus which I will treat as a financial resource as its quantum varies from year to year.
The marriage was short, lasting some five years and five months, and its length has had no effect on the earning capacity of either party.
The wife has the primary care of [X], who was almost five years old at the time of trial, and will therefore carry most of the responsibility for that care for many years yet. I note and acknowledge in this context that the husband pays child support pursuant to the binding Child Support Agreement executed by the parties between the last day of trial and the making of submissions, and also that he visits Melbourne at his own expense on a regular and fairly frequent basis in order to spend time with [X].
Neither party has a responsibility to maintain any other person, and both are able to maintain a comfortable standard of living.
By agreement between the parties, the husband will retain the Property C property and all other assets in his current possession as a result of these proceedings, and the wife will retain both the Property B and Property A properties as well as any other assets in her possession.
I come now to the provisions of s.75(2)(o), to which I have made reference earlier in these Reasons.
S.75(2)(o) allows the court to take into consideration “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In relation to the wife, I take into account that she paid an unquantifiable sum towards her legal fees from moneys she received in a redundancy package during the marriage, and that she paid her tax debt of $43,000, also from joint monies.
In relation to the husband I take into account the following:
· he has had the sole benefit of the sum of $13,776 from the sale of his Shares E
· he pays the whole of the Property C mortgage by choice, as he holds that property as tenant-in-common with his sister, who makes no payments
· he made deposits to the Property C mortgage of at least $180,217 from joint funds during the marriage.
I note that I have considered the $90,000 the husband withdrew from the parties’ joint mortgage offset account at separation as a factor when considering his contributions to the parties’ property.
Decision Issue D
In all the above circumstances: where the wife has the primary care of [X] who is very young; where this was a short marriage; where both parties are both young professionals with significant earning capacity; and where the husband has had the benefit of significantly greater sums of joint monies than has the wife; I find it appropriate to make an adjustment to the wife of 10% on the basis of the matters set out in s.75(2).
Overall then, the outcome of my findings in this matter are that the wife should receive 65% of the parties’ assets, and the husband 35%.
E. In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
I have found that the net asset pool, absent the parties’ superannuation entitlements, is worth $1,555,736.
There is a discrepancy in the parties’ superannuation entitlements of $53,171. If those entitlements were to be equalised, as I think is appropriate in this case, there would need to be an adjustment from the husband’s entitlements to the wife’s entitlements of $26,585.
When I take into account the totality of the property to be divided, the superannuation entitlement discrepancy is not high enough to warrant a superannuation splitting order, but I will take that sum into account in the overall settlement.
65% of $1,555,736 is $1,011,228.
35% of $1,555,736 is $544,508.
Therefore, as a result of this settlement, Ms Granville should receive assets worth $1,011,228 plus a payment to adjust for the discrepancy in superannuation entitlements of $26,585, a total of $1,037,813.
Mr Granville should receive assets worth $544,508 less the payment to adjust for superannuation discrepancy of $26,585, which comes to $517,922.
By agreement between the parties, Ms Granville will retain:
· the Property A property subject to its mortgage $378,556
· the Property B property $615,000
· the funds held in trust by her lawyers $ 35,000
· the ANZ Account $ 10,310
· her CBA Account $ 21,577
· her NAB Account $ 6,636
· her ING Direct Account $ 51,906
· her Shares F $ 3,430
· superannuation adjustment payment $ 26,585
Total assets $1,149,000.
Mr Granville will retain:
· his interest in the Property C property
subject to its mortgage $342,500
· the funds held in trust by his lawyers $ 30,652
· the ANZ Account … $ 393
· the ANZ Account … $ 4,925
· the Shares E $ 414
· Motor Vehicle $ 55,000
· his ANZ credit card debt ($ 563)
· superannuation adjustment payment ($ 26,585)
Total Assets $406,736
Ms Granville ought to have assets worth $1,037,813 under the settlement I have decided upon. She will receive assets worth $1,149,000. She will therefore have to pay to Mr Granville the difference between those two numbers, which is $111,187.
Mr Granville ought to have assets worth $517,922. He will receive assets worth $406,736. The difference between those two sums is $111,186.
The $1 discrepancy may be accounted for in the rounding of numbers.
Therefore, the amount that Ms Granville will be ordered to pay Mr Granville is $111,187, which, I note, is considerably less than he has paid in legal fees to prosecute his case in these proceedings.
Conclusion
These parties are relatively young. Each has qualifications and experience which are likely to keep them employed into the future.
They have a handsome young son whom both parents clearly love dearly. It is greatly to their credit that they were able to come to agreement about his care and financial support arrangements.
There was little trust between them at trial. It is to be hoped that once this property settlement is effected, they will be able to put their personal acrimony aside and work together to be the best possible parents they can be for [X].
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 16 January 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Equity & Trusts
Legal Concepts
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Consent
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Remedies
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Costs
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Fiduciary Duty
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Constructive Trust
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