HALL-WATERMAN & HALL-WATERMAN

FAMILY COURT OF AUSTRALIA

HALL-WATERMAN & HALL-WATERMAN

[2009] FamCA 970

FAMILY LAW – PROPERTY – contributions – cohabitation of 27 years - parties’ disparate earning capacities – wife’s ill health – inheritance received by the husband – wife’s motor vehicle compensation claim – development potential of a property owned by the parties – equality of contributions – 12.5 per cent adjustment in favour of the wife

Family Law Act 1975 (Cth)

APPLICANT:

Ms Hall-Waterman

RESPONDENT:

Mr Hall-Waterman

FILE NUMBER:

SYF

2860

2006

DATE DELIVERED:

1 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

5-7 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

COUNSEL FOR THE RESPONDENT:

Mr Macpherson

Orders

Within two calendar months of the date of these Orders the husband transfer to the wife the whole of his right, title and interest in and to the property known as and situate at L in the State of New South Wales being the whole of the land contained in Folio Identifier … (“L property”).
As and from the date of the transfer referred to in Order 1 hereof, the wife indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings with respect to L property, and the principal and interest due and payable under the mortgage charged thereon.
The husband forthwith pay to the wife the sum of $60,847.84.
The wife forthwith sign all documents and do all things necessary to transfer to the husband all of her right, title and interest in, any loan account in, the

Hall-Waterman Family Trust and its related entities – the Hall-Waterman Family Trust Partnership, the A Family Trust, the B Family Trust and the C Unit Trust (“the Trusts”) and her shareholdings and loan accounts in R Pty Limited, N Pty Limited, C Pty Limited, G Company Pty Limited and D Pty Limited (“the companies”) and resign from all positions that she holds in the companies and the Trusts.
Within 30 days the wife do all such things as may be necessary to discharge the mortgage charged on L property. In the event that the wife does not discharge the said mortgage within the time hereby limited or any agreed or granted extension thereof, the wife is to forthwith upon the expiration of that time do all such things as may be necessary to sell L property for the best price reasonably obtainable and apply the proceeds in the following manner:
(a)       In payment of selling expenses and legal costs of sale;
(b)       In discharge of the mortgage on the said property; and
(c)       In payment of the balance to the wife.
Leave is granted to the parties to apply on 48 hours notice for orders in the event of dispute or difficulty in relation to the implementation of this Order.
Upon compliance with Order 4 and 5 herein the husband shall indemnify the wife and keep the wife indemnified in respect of any liabilities and in relation to any action, claim or demand of the companies and the Trusts, whenever they were incurred and including any taxation liability.
Within 28 days the Trustees of the Hall-Waterman Superannuation Fund (“the Superannuation Fund”) shall cause the wife’s entitlement in the said fund to be transferred to an eligible superannuation fund nominated by the wife.
Upon compliance with Order 7 the wife do all acts and things and execute all deeds, documents, instruments and writings necessary to resign as a Trustee of the said Superannuation Fund.
Except as otherwise specified in these Orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these Orders.
If either party refuses or neglects to sign, within fourteen (14) days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
Any application for costs be filed an served within 28 days of the Orders herein made, and subject to the following;
(a)any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application;
(b)any respondent to a costs application must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely; and
(c)the applicant will have a further 7 days in which to file any submission in reply.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2860 of 2006

MS HALL-WATERMAN

Applicant

And

MR HALL-WATERMAN

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the parties to a marriage seek an alteration of their interests in property.
There is no dispute between them that assessed on the basis of contribution there would be an equality of division but they say there are a number of factors which would require that an equality of distribution be varied.
Issues arose between the parties as to the assets which should be taken into account and their value. The husband, for example, had purchased a home partly with savings and partly with monies received from an amount said to be a significant inheritance from his mother, and he said this ought to be excluded from consideration.
Another factor for consideration under section 75(2) of the Family Law Act1975 (“the Act”) is the significant disparity between the wife's earning capacity and that of the husband. It was conceded that the wife was unlikely, by reason of her ill health, to be able to engage in significant employment any longer.

Background facts

In 1948 the husband was born and is now aged 60.
In 1951 the wife was born and is now aged 58.
The parties married in 1978.
The parties separated finally on 21 July 2005 and were divorced in 2007.
Between the date of the marriage and 1983 the parties lived in rented accommodation.
At the date of the marriage it was asserted by the wife that she had an interest in a shop sold in 1982 for $60,000 and savings of some $30,000.
The wife asserted that the husband had minimal savings.
In 1978 the wife was injured in a motor vehicle accident whilst the husband was driving and received compensation in the sum of $57,435.
The husband owned a sales business which he had purchased utilising monies he had borrowed from his father and the bank.
Subsequently the husband and wife purchased vacant land at L (“the L land”) for $22,000 on the wife’s version of events and for $25,000 on the husband’s version of events. Part of the purchase price amounting to $15,000 of that sum was provided, on the wife’s version of events, from the wife’s savings, and on the husband’s version of events from joint savings. The sum of $7,000 was borrowed from the husband's father on the wife’s assertion and $10,000 on the husband’s assertion. This sum it is said was subsequently repaid from the proceeds of sale of the wife's clothing business.
The husband says that in late 1980 (the wife says 1982) the husband sold his sales business and received $25,000 net which he deposited into a bank account.
In 1980 the husband commenced working for U Agency.
The wife received, according to the husband, her compensation payment in 1980 in the sum of $60,000.
Between 1981 and 1995 the husband's income ranged from about $25,000 per annum to about $87,000 per annum.
Between 1982 and 1983 the parties constructed a house on the L land at a cost of $120,000. There is an issue as to the source of those funds but in light of the concessions made subsequently probably of little moment. It is asserted by the wife that the equity in this property was provided by her from proceeds of the sale of her shop business and her compensation payment.
The husband asserted that the home built at L cost $110,000 and to finance the building the husband and the wife obtained a mortgage to the National Australia Bank in the sum of $30,000 and utilised the compensation monies that the wife had received of approximately $60,000 as well as joint savings.
The husband and wife agree that the parties took occupancy of the L property in March 1983.
In May 2004 the husband received an inheritance of $33,000 from his aunt and paid it into the parties' joint account.
The parties resided at L until July 2005 when the husband moved out of the property.
The wife has had exclusive occupation of the L property since that date.
The beneficiaries of the Hall-Waterman Family Trust include the parties and entities associated with the beneficiaries.
The Trust has operated principally as an investment vehicle holding interests in R Pty Limited, the G Company Pty Ltd and C Pty Limited.
R Pty Ltd is equally owned by the B Family Trust and the Hall-Waterman Family Trust.
The A Family Trust, the B Family Trust and the Hall-Waterman Family Trust established an equal partnership to hold their investments in G Company Limited and the C Unit Trust.
The partnership does not trade or hold property in its own right.
G Company was incorporated in 2002. Ms A, Mr P, Mr B and Mr E and the husband are the directors of that company.
The company was incorporated to develop land at G.
The purchase price of the land was $1.7 million and vendor finance was provided in the sum of $1.2 million. The Hall-Waterman Family Trust purchased an 11.3 per cent interest in G Company.
The Hall-Waterman Family Trust then borrowed monies in order to purchase the interest in G Company.
Monies were advanced to the Hall-Waterman Family Trust by the husband and wife by drawing down on a Commonwealth Bank line of credit.
In 2003 a proposed residential subdivision of the G land was submitted for development approval to the State Planning Department.
The proposal included developing the site to build 144 residential blocks in addition to creating substantial reserve areas.
There has been no response to the proposal. The husband adduces evidence from his consultant and a planner, Mr M, who in a letter advises the husband inter alia:
"The EA specifications are very comprehensive for the [G] site due to the sensitive environment. There is the possibility that threatened species could utilise the site and therefore the Department of Environment and Climate Change require further comprehensive flora and fauna studies to be undertaken. There is also a need to do further archaeology investigations. The outcome of these studies could then require a redesign of the proposed subdivision layout.
In view of this situation it is estimated that the draft EA will not be finalised for 12 months. [noting that this advice was written in April 2008]. It would then be lodged with DoP and after that department reviews it, changes would be made for final lodgement. That process would take a further three to six months. Once the final EA is lodged there is a public exhibition phase before the application is finally determined. Experience suggests that this phase would also take three to six months.
In summary it is likely to be another 18 months to two years before an approval or refusal for the project is issued by DoP.”
The letter sent in my view is a factual one and expresses no particular optimism for the requested rezoning.
The parties brought before the Court evidence in affidavit form detailing a large number of events during the course of their marriage and following separation.
Much of that evidence became of marginal value given that the parties conceded that to the date of the hearing a consideration of contributions by them could only lead to the conclusion that their contributions are equal in value. I accordingly have not summarised all that evidence.
There were however other issues.
The parties presented to the Court a balance sheet setting forth their non superannuation assets, their superannuation assets, their liabilities and so called “add backs to the pool”. That balance sheet is set out hereunder:

Non Superannuation Assets	Wife’s value ($)	Husband’s value ($)
1	[L property] (joint)	1,100,000	1,100,000
2	[O property] (h)	450,000	450,000
3	[Hall-Waterman] Family Trust (h)	455,000	317,000
4	Monies at bank (h)	774	774
5	Monies at bank (w)	240	240
6	Furniture and effects (h)	5,000	5,000
7	Furniture and effects (w)	10,000	10,000
8	Honda Accord (w)	15,000	25,000
9	Related Party Loans – Wife (w)	-5,100	-5,100
10	Related Party Loans – Husband (h)	46,242	46,242
11	Husband’s Inheritance (h)	Nil
Sub-Total (Non-Superannuation Assets)	$2,077,156	$1,949,156

Add-backs to property pool	Wife’s value ($)	Husband’s value ($)
12	Paid Legal Costs – Husband (h)	175,570	175,570
13	Paid Legal Costs – Wife (w)	32,000	32,000
14	Monies Drawn Down from the Veridian Line of Credit [by the wife] plus interest paid by the Husband	74,450
Sub-Total	$207,570	$282,020

Liabilities	Wife’s value ($)	Husband’s value ($)
15	Mortgage over [L property] (joint)	200,000	200,000
16	Commonwealth Bank Loan ([Hall-Waterman] Family Trust) (joint)
17	Mortgage over [O property] (h)	349,207	349,207
18	Visa (h)	710	710
20	Impact Funding Loan (h)	135,999	135,999
21	Wife’s Visa (w)	3,958
22	Loan from Wife’s Sister (Dental) (w)	2,000
23	Payable to St Vincents Hospital (w)	1,500
24	Centrelink Repayment following proceedings (w)	8,804
Sub-Total (Liabilities)	$702,178	$685,916

Total Non-Superannuation Assets	Wife Asserts ($)	Husband Asserts ($)
Non-super assets	2,077,156	1,949,156
PLUS add-backs	207,570	282,020
LESS liabilities	702,178	685,916
Total	$1,582,548	$1,545,260

Superannuation Assets	Wife’s value ($)	Husband’s value ($)
25	[Hall-Waterman] Superannuation Fund (joint)	193,882	193,882
Sub-Total (Superannuation)	193,882	193,882

Total Superannuation and Non-Superannuation Assets	Wife’s value ($)	Husband’s value ($)
Non-superannuation assets	2,077,156	1,949,156
PLUS superannuation	193,882	193,882
PLUS add-backs	207,570	282,020
LESS liabilities	702,178	685,916
Total	$1,776,430	$1,739,142

The valuation of the Hall-Waterman Family Trust interests

The significant areas of dispute between the parties as to value related firstly to the Hall-Waterman Family Trust where the wife asserted a value of $455,000 and the husband a value of $317,000.
The Hall-Waterman Family Trust was the subject of a valuation by a jointly appointed expert. She produced two reports valuing the Hall-Waterman Family Trust on two bases.
The first basis (Scenario A) was calculated by using a net asset backing approach on the basis of the financial statements for the various entities and valuations prepared by a single expert property valuer. That scenario valued the Trust at $317,000.
The second basis (Scenario B) which valued the trust at $455,000 was based upon financial statements as at 30 June 2007 and the consideration paid by the B Family Trust on its purchase of the interest of the A Family Trust of the partnership using a net asset backing approach.
In calculating a value for Scenario B the expert relies upon, as accepted as a basis for valuation, a sale made post 30 June 2007 and before the date of valuation in a closed market probably on advice given by valuers procured by the parties and which value was ultimately reached by agreement between the buyer and seller.
To assert that the current value of this property should be determined by reference to a former sale to a member of a class of restricted market who had an existing interest in the venture might be appropriate if there was evidence that currently there was someone in that restricted market conforming to the characteristics of the prior purchaser and who is ready, willing and able to purchase a party’s interest in it.
There is no evidence before me that that restricted market currently exists and I do not accept that it is appropriate to value interests in the land on the basis of that particular sale and purchase.
I prefer the valuation based on Scenario A since it reflects a current rather than an out of the date value and the value of a sale in a known general market.
It was put to me that I could take into account in determining the value of this property the potential it had for being more valuable by reason of a rezoning decision. No doubt that potential to the extent that it exists is reflected in the current valuation since any purchaser would take that possibility into account.
In any event there is no indication that a favourable decision would be made and to attribute a value on this basis would be an entirely speculative process.
There is no application before me in the event for an order under section 79(5) of the Act.
There was an application for orders requiring the making of disclosure and liberty to apply in the event that an approval was granted before my judgment was delivered and I acceded to that request. Absent a request of a party to the Court to make an order under section 79(5) I believe it is my obligation under the Act to hear and determine the issues now and make an order in accordance with the law if I can justly do so. I find I can do so on the information before me with justice and equity.
I accordingly determine for the reasons set forth above that the valuation for the purposes of the balance sheet of the Hall-Waterman Family Trust is $317,000.
There was some discussion about the nature of related party loans included in the balance sheet but ultimately that was agreed between counsel appearing in the matter.

“Add Backs”

Legal costs

It was noted that the parties agree to certain add backs to the balance sheet, namely the paid legal costs and, for ease of management, the litigation lending loan with respect to part of those costs.

Withdrawals of funds post separation

The next significant issue is the monies which were drawn from the Viridian Line of Credit post separation.
It is asserted by the husband and denied by the wife that this sum, which was an amount of approximately $60,000, was withdrawn by the wife without the consent of the husband.
The husband asserted that the wife completed a blank withdrawal slip signed by him copy of which was annexed to an affidavit and without his consent or foreknowledge tendered it to the Bank to effect a withdrawal.
He said that since the withdrawal of that sum he has had to meet interest payments on it and that the amount which properly ought to be added back is not only the initial sum but with the interest accrued up to the date of payment.
It is not my intention to add this sum back into the balance sheet however I will take it into account in determining the issues that I must determine under section 75(2) of the Act.
I note it seems that sum was expended by the wife for her reasonable living expenses.

The husband’s unpaid obligations for maintenance

It is noted by the parties that the husband was obliged to pay the wife maintenance pursuant to a maintenance order and which was not paid as from February 2008, as required by the orders of 20 June 2006.
In the husband’s affidavit filed 20 April 2009 he deposed to having paid the wife about $35,458 in maintenance and estimated that he owes the wife approximately $22,535 (including interest) in spouse maintenance. Notwithstanding his affidavit in Exhibit 9 tendered by the husband, he said that from 23 June 2006 to 18 February 2008 he estimated that he has paid the wife a total of $34,400 by way of spousal maintenance payments.

In the event the husband seeks that the maintenance order be discharged from the date on which it stands paid. If I was to do that I would take into account the failure of the husband to fulfil his obligation under the order for a period as a matter appropriate to take into account under section 75(2). It was the proposal of the wife that it be discharged as from January 2009.
I do not intend to accede to that request since I propose to take into account the arrears in the way I have indicated. I will therefore discharge the order from the date to which it stands paid.
No application was made for an order under section 77.
I am asked to remove from the balance sheet items 21 to 24.
I decline to do so except to the extent that the figure from Centrelink is included.
An effect of the order I will make to discharge the maintenance obligation to the date to which it stands paid will be, I am informed, that there will be no sums repayable to Centrelink.
As to the items 21 to 23 I do include them in the liabilities since they are reasonably incurred by the wife post separation for her living expenses in circumstances where the husband has not met the obligation imposed upon him by an order for maintenance.

The Balance Sheet

I listed this matter for further mention on 25 September 2009 to seek clarification of the parties’ respective interests in the Hall-Waterman Superannuation Fund (“the Superannuation Fund”). A jointly tendered document was marked Exhibit 11, and is a Draft Statement of Financial Position as at 30 June 2009. It sets out the liability of the fund for accrued benefits of the husband as being $169,890.91 and the wife as to $23,991.95.
As a result of my findings above I find that the assets and liabilities of the parties are as follows:

Non Superannuation Assets		($)
L property (joint)		1,100,000
O property (h)		450,000
Hall-Waterman Family Trust (h)		317,000
Monies at bank (h)		774
Monies at bank (w)		240
Furniture and effects (h)		5,000
Furniture and effects (w)		10,000
Honda Accord (w)		15,000
Related Party Loans – Wife (w)		-5,100
Related Party Loans – Husband (h)		46,242
Sub-Total (Non-Superannuation Assets)		$1,939,156
Add-backs to property pool
Paid Legal Costs – Husband (h)		175,570
Paid Legal Costs – Wife (w)		32,000
Sub-Total		$207,570
Liabilities
Mortgage over L property (joint)		200,000
Mortgage over O property (h)		349,207
Visa (h)		710
Impact Funding Loan (h)		135,999
Wife’s Visa (w)		3,958
Loan from Wife’s Sister (Dental) (w)		2,000
Payable to St Vincents Hospital (w)		1,500
Sub-Total (Liabilities)		$693,374
Total Nett Non-Superannuation Assets
Non-superannuation assets		1,939,156
PLUS add-backs		207,570
LESS liabilities		693,374
Total		$1,453,352
Superannuation Assets
Hall-Waterman Superannuation Fund (joint):
· Husband	169,890.91
· Wife	23,991.95	193,882.86
Sub-Total (Superannuation)		193,882.86
Total Superannuation and Non-Superannuation Assets
Non-superannuation assets		1,939,156
PLUS add-backs		207,570
PLUS superannuation		193,882.86
LESS liabilities		693,374
Total		$1,647,234.86

Section 75(2) factors

The wife is aged 58 and is in poor health. She is in receipt of a disability support pension.
She has been diagnosed as suffering from “chronic regional pain syndrome at the right shoulder”; “low back and bilateral leg pain disorder”; and “experienced moderately high level anxiety also with depression of mood”. She has been prescribed various medications.
It is not apparent on the evidence that she has no prospects of any future employment but it does seem likely that her prospects of any employment would be limited in the extreme.
The husband is aged 60 years. He is in reasonable health although recently undergoing surgery for cancer of the prostate.

Employment History

At the commencement of cohabitation the wife owned a shop, and the husband owned a sales business. The husband’s evidence is that he had a bank overdraft in the amount of $30,000.
Between 1982 and 1992 the wife says she was employed as a manager in a professional practice. She says she left her employment at the practice in 1992 to care for her mother and later her sister, and that until 1994 she worked part time in a clothing store. The wife later cared for her mother on a full time basis between 2000 and 2002. However, in his affidavit filed 6 August 2008 the husband says the wife worked full time as a receptionist from 1986 to 1992, and that from that time the wife predominantly undertook homemaker duties.
It is the wife’s evidence that she also worked as a caterer during the time of her employment at the professional practice but that she began catering for functions more frequently, and approximately once per month, after 1992.
The wife says that she was also involved in the sales agency from 1994 until 2000 and from 2000 until 2005. The wife was employed as a receptionist, and also says she assisted the husband in his business. In 2002 the wife completed a business course.
The husband worked in the motor trade, and was self-employed until 1980 when sold his business for a net figure of approximately $25,000. At this time the husband commenced full time employment as a salesperson in a sales agency until 1987 and then for another agency in March 1987. In or about May 1995 the husband says he became a partner of F Business, and which is his current employment.

Default in the payment of maintenance

The wife suggested that under this heading the Court should take into account the failure of the husband to pay maintenance ordered to be paid by him. The evidence of the husband was that he had a capacity to pay that maintenance, subject to the concurrence of his partners, in procuring a loan from the partnership or company but that he made no application for such a loan. Had he, his partners would probably have agreed but he simply declined to substitute one debt for the other.
It was suggested by Mr Macpherson that Mr Richards' submissions that the company had the money and he could have got it was a little naïve having regard to the fact that he was required to procure the consent of the other directors, and that simply because funds were held by a corporation would, on the application to the directors (required to act for the benefit of the shareholders as a whole), be made available to him.

Failure to disclose

The husband in his financial statements filed in Court, fell into egregious error in failing to disclose the availability of income by way of distribution, dividend or otherwise. He was guilty in other words of a failure to disclose income received other than by way of wages.
It was pointed out that the husband has since separation had the benefit of all the investments from the earnings of the sales agency. But, of course, it is also true that the husband has paid significant monies in the maintenance of the mortgage charged upon the former matrimonial home and met certain of the outgoings of that home, but not all. The wife has had the benefit of occupancy.
I certainly will take into account the significantly greater capacity of the husband to earn income when compared with the wife. I think this is a very strong factor weighing in the wife's favour in considering an adjustment under section 75(2) and one which needs to have real and significant acknowledgement in the result. I will also take into account the failure of the husband to pay maintenance.
I do not accept the suggestion put to me by Mr Richards that the Court should, in the interests of justice in this case, take into account the potential for the G land being rezoned, in circumstances where the value of that land has been determined by a qualified and competent valuer. As at the date of hearing I rely on that as the market value at the present time and, as I have already said, and to take into account a speculative rezoning either as a matter of value or as a matter of significance in assessing adjustments under section 75(2) is something that I will not do.
I am asked by the husband to take into account under section 75(2)(o) that property which was purchased by him post separation was purchased in part by an inheritance received by him from his mother and I do so. I note however that the balance of the funds to purchase the property came from savings and from alternative borrowings which were repaid, or are to be repaid, using that earning capacity that the husband acquired and developed during the course of this marriage and to which the wife has made a contribution.
I have considered the husband’s evidence that he made post separation contributions to the Superannuation Fund which, together with earnings on the fund, increased the amount in that fund from $154,674 at separation to a current balance of $193,882.86.

Viridian Line of Credit post separation

I note this sum was used significantly for living expenses and do not give it in these considerations particular weight.

Conclusion on section 75(2)

Given the matters referred to above I believe an adjustment should be made in the wife's favour on the sum found to be the net assets of 12.5 per cent and that will mean that the wife will receive $1,029,521.79.

Overall division of assets

The above determination will see the wife receive 62.5% of the parties’ assets and the husband receive 37.5%.

Just and equitable

The division of assets would see the wife receive $1,029,521.79 worth of nett assets and the husband receive $617,713.07 worth of assets.
The wife has sought to retain the former matrimonial home at L. The husband has a property which he purchased at O, and the wife’s ability to service a mortgage is limited. Neither party sought a splitting order in respect of their superannuation and I propose to order that the parties each retain their benefits in the Superannuation Fund. I can do justice and equity between the parties by adjusting the assets in this way, which may assist the wife to keep the L property.
In the circumstances of this case I determine that the result I propose is just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	($)
L property	1,100,000
Monies at bank	240
Furniture and effects	10,000
Honda Accord	15,000
Related Party Loans	-5,100
Sub-total	$1,120,140
The wife is to receive from the husband cash in the sum of $60,847.84 to bring a division to the non-real estate property of the parties.	60,847.84
Sub-total	$1,180,987.84
Add back - paid legal costs	32,000
Sub-Total (Non-Superannuation Assets)	$1,212,987.84
Liabilities
Mortgage over L property	200,000
Wife’s Visa	3,958
Loan from Wife’s Sister (Dental)	2,000
Payable to St Vincents Hospital	1,500
Sub-Total (Liabilities)	$207,458
Superannuation Assets
Wife’s interest in the Hall-Waterman Superannuation Fund	$23,991.95
Sub-Total (Superannuation)	$23,991.95
Total Superannuation and Non-Superannuation Assets
Non-super assets	1,180,987.84
PLUS add-backs	32,000
PLUS superannuation	23,991.95
LESS liabilities	207,458
Total Net Assets (including Superannuation)	$1,029,521.79

The husband will receive:

Assets	($)
O property	450,000
Hall-Waterman Family Trust	317,000
Monies at bank	774
Furniture and effects	5,000
Related Party Loans	46,242
Sub-total	$819,016
Add back - paid legal costs	175,570
Sub-Total (Non-Superannuation Assets)	$994,586

Liabilities
Mortgage over O property	349,207
Visa	710
Impact Funding Loan	135,999
Sub-total	$485,916
Amount due to the wife under these orders	60,847.84
Sub-Total (Liabilities)	$546,763.84
Superannuation Assets
Husband’s interest in the Hall-Waterman Superannuation Fund	$169,890.91
Sub-Total (Superannuation)	$169,890.91
Total Superannuation and Non-Superannuation Assets
Non-super assets	819,016
PLUS add-backs	175,570
PLUS superannuation	169,890.91
LESS liabilities	$546,763.84
Total Net Assets (including Superannuation)	$617,713.07

Costs

Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.

I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 1 October 2009

[2009] FamCA 970

1 October 2009

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Fiduciary Duty

Constructive Trust

Injunction

Res Judicata