Ingram and Ingram - [2011] FMCAfam 1444

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INGRAM & INGRAM

[2011] FMCAfam 1444

FAMILY LAW – Distribution of property where substantial initial contribution and most other financial contributions made by husband – contribution of wife by caring for children of both parties.

Family Law Act 1975 (Cth), ss.75, 79,
Administration and Probate Act 1958, s.91

Hickey [2003] FLC 93-143
Coghlan [2005] FLC 93-220
Crampton and Crampton in (2006) FLC ¶93 269
Pierce and Pierce (1998) FamCA 74, (1999) FLC ¶92-844

Applicant:

MS INGRAM

Respondent:

MR INGRAM

File Number:

DGC 172 of 2010

Judgment of:

Phipps FM

Hearing dates:

28 February, 1, 2, 3 & 18 March 2011

Date of Last Submission:

18 March 2011

Delivered at:

Dandenong

Delivered on:

22 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr McFarlane

Solicitors for the Applicant:

Maria Barbayannis & Co.

Counsel for the Respondent:

Mr Salamanca

Solicitors for the Respondent:

Gillian Coote Family Law

ORDERS

That paragraph 1 of the Orders of the 1 February, 2010 and paragraph 2 of the Orders of the 8 February, 2010 be discharged.
That within 60 days from the date hereof (“the date”), the husband pay to Barbayannis Lawyers, on behalf of the wife, the sum of $80,750 (“the payment”).
That in order to facilitate the payment, the wife forthwith provide a Withdrawal of Caveat in respect of the property at Property R to the husband’s lawyers.
That in the event that the payment has not been made by the date, the husband forthwith thereafter, place on the market for auction sale, the property at Property R (“the real property”) on such terms and conditions as may be agreed between the parties and failing agreement, upon such terms and conditions (including a reserve price) as may be nominated by a representative of the President of the Real Estate Institute of Victoria from time to time.
That the net proceeds of sale of the real property be applied as follows:
(a)In payment of all costs, commission and expenses of the sale;
(b)To discharge any mortgage;
(c)So much of the payment is then outstanding together with interest thereon at the rate of 10.5% per annum calculated daily to the wife; and
(d)The balance to the husband.
In the event that the payment is not made by the date, the wife be entitled to re-lodge a caveat over the real property pending compliance with these orders.
Within 7 days the wife provide to the husband’s lawyers, a withdrawal of caveat in respect of the property at Property M.
THAT pending the payment or completion of the sale:
(a)The husband have the sole right to occupy the real property. During such right of occupation the husband pay all instalments pursuant to any mortgage and all rates and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders.
THAT within 60 days of the date hereof, the husband do all such acts and things and sign all such documents as he may be reasonably required to do by the wife, at the expense of the wife, to cause the transfer of the registration of the following properties in Cyprus:
(a)Plot (omitted) of the property at (omitted);
(b)Plot (omitted) being the property at (omitted); and
(c)Plot (omitted) being the jointly owned property at (omitted).
That contemporaneously with the transfers as referred to in paragraph 9 above, the wife do all such acts and things and sign all such documents as she may be reasonably required to do by the husband, at the expense of the husband, to cause the transfer of the registration of the property at Plot (omitted) at (omitted), Cyprus.
That in the event that either party fails to execute any necessary document to give effect to these orders, within 14 days of a written request being made by the other party, then a Registrar of the Federal Magistrates’ Court of Australia, be entitled, pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute all necessary documents for and on behalf of such defaulting party.
Each party indemnify the other in relation to any liability in the name of such party and the husband be solely responsible for and indemnify the wife in respect of any monies owing to the estate of his late brother Mr S.
That the husband retain to the exclusion of the wife any bank accounts in their joint names or to which the wife is signatory in Cyprus.
That within seven days the wife do all such acts and things as may be required to release the funds to the husband in any bank account in Cyprus or in Australia that are currently frozen.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled, to the exclusion of the other party, to all property (including choses-in-action) in the name or possession of the party;
(b)Each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other party;
(c)Insurance policies and share portfolios remain the sole property of the owner named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this agreement;
(e)Each party be solely responsible for any liability in their own name; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All applications be otherwise dismissed and removed from the pending cases list.

AND THE COURT NOTES:

The parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 172 of 2010

MS INGRAM

Applicant

And

MR INGRAM

Respondent

REASONS FOR JUDGMENT

Introduction and general

The husband and wife own property in Australia, Cyprus and Greece. They disagree about its division. The husband proposes that it be divided 75%/25% in his favour. The wife proposes that it be divided equally. The property and values are agreed, but there are some issues about how some parts of the property should be treated.
Section 79(1) of the Family Law Act 1975 (Cth) provides that in property settlement proceedings the court may make such order as it considers appropriate. The following sub-sections set out the considerations the court is to take into account in deciding what is appropriate. This is a four step process. First, determine what are the assets and liabilities of the parties, next consider the parties’ contributions taking into account the matters in s.79(4)(a)-(d), next consider whether an adjustment should be made taking into account the matters referred to in s.75(2) insofar as they are relevant, and finally consider whether in all the circumstances it is just and equitable to make the proposed order. The four step process is usually applied to superannuation and non superannuation assets separately, but there are cases where this may not be appropriate.[1]
[1] Hickey [2003] FLC 93-143. For superannuation Coghlan [2005] FLC 93-220
The property and values are:
SCHEDULE A

PROPERTIES IN CYPRUS

(omitted)
Trees
(omitted) (joint)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
Hobby Farm: (omitted)
House in (omitted)
(omitted) residential land
(omitted)
(omitted)
(omitted)
(omitted) (joint)
(omitted)

Exchange rate of 1 Euro

PLOT NUMBER

(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)
(omitted)

0.74 AUD

VALUE (AUD)

$216,216
$     405
$ 70,270
$   9,459
$ 13,513
$ 79,730
$ 12,162
$ 27,027
$   9,459
$141,891
$    5,405
$ 59,459
$218,216
$218,918
$700,000
$222,972
$ 20,270
$ 47,297
$270,270
$ 70,270

PROPERTIES IN GREECE
(omitted)
PROPERTIES IN AUSTRALIA
Property R
Property M

Property T
BANK ACCOUNTS

Bank of Cyprus
(omitted)
Bank of Cyprus
(omitted)
Bank of Cyprus
(omitted)
(omitted) Bank
(omitted)
Village (omitted)

Westpac

Bank of Cyprus
(omitted)

Bank of Cyprus
Wife’s Accounts

PLOT NUMBER

LOCATION

(omitted)

(omitted)

(omitted)

Property R

(omitted)

(omitted)

Total

VALUE (AUD)
$ 30,000

$725,000
$ 23,000 or $175,000
$121,250

NIL

$   3,492

$     873

$    100

$    1,616

NIL

$    1,400

$    1,136
NK

$3,319,076 or $3,471,076

The husband was born on (omitted)1938. The wife was born on (omitted) 1944. The husband was born in Cyprus and came to Australia in (omitted). The wife was born in Greece and came to Australia in (omitted).
The parties commenced living together in September 1984 and married on (omitted)1985. They separated on 1 January 2010. They were divorced on 22 June 2011.
Both parties had been previously married. Each had three children. All six children lived with the parties from the commencement of the relationship.
The husband’s three children from his first marriage are X born (omitted) 1963, Y born (omitted) 1970 and Z born (omitted) 1976. After his separation from his first wife the children lived with him.
The wife has three adult children from her first marriage, A 35, B, 30 and C, 29.
The husband is a meticulous record keeper and has kept cashbooks of his receipts and expenditure, both business and personal. Some criticism was made of some entries where there were alterations or an apparent conflict with cheque records. The husband gave satisfactory explanations. For instance, during periods when he was in Cyprus his daughter made payments and entered the records. Subsequently he found that one or more of the records was wrongly coded and he altered it. Given the size of the property pool and in the context of a 26 year relationship the amounts are insignificant. They certainly do not show that the records are inaccurate or carelessly kept.
At the commencement of cohabitation the husband was living in the home he owned at Property R with his three children. At the time his children were 21, 14 and 8. The wife moved in with her three children who were then aged 19, 14 and 13. The husband and his former wife had built the house in 1968. The husband acquired his former wife’s interest in December 1983. At the commencement of cohabitation it was unencumbered and the husband says he spent approximately $30,000 on extensions to accommodate the wife and her children. The cashbook shows $20,000 for the extension and when this was pointed out to the husband he said there may have been some additional money spent on carpet and other items.
At the commencement of cohabitation the wife owned the property in Greece, (omitted). She had a Centrelink debt of about $1,407 which the husband repaid. The husband's cash book shows a transfer from the wife of $3,000 in 1985 so it might be that the wife had savings of this amount at the commencement of cohabitation.
Prior to cohabitation the husband was a partner in the business (omitted). In 1981 he received $225,000 as his share of the sale of the business. He purchased two blocks of land in (omitted), Property 1 in 1976 and Property 2 in 1984 shortly after cohabitation commenced. In 1981 he borrowed $40,000 and built a factory on the land. He commenced and ran a (omitted) business; (omitted) from those premises. Both blocks of land were owned by (omitted) as trustee of a family trust.
A factory was built on Property 2. The land was purchased for $41,649. The cost of the building was $101,688 so that total land and building costs, including stamp duty and purchasing costs was $147,039.
Some of the money was borrowed. The balance of the loan account on 30 June 1985 was $51,560. On 30 June 1986 it was $62,067.
On 30 June 1997 the loan was $45,923. Six payments had been made in the course of the year. The business then took out a fully drawn loan account of $220,000, some of which was used to pay off the previous loan. The money was used in the construction of the building on Property 2 and in running the business. The business did well initially but in the late 1980s it started to lose money. The loan eventually reached $300,000.
In November 1984 the husband purchased a property at Property A, for $70,000. It was sold in 1988 and the money received used to reduce the business loan from the ANZ Bank.
At about this time the husband’s brother Mr S moved to Cyprus. He sold his house and the husband says from the proceeds put $140,000 into the business as a loan. The husband says that his brother Mr S contributed further funds from the sale of land in Cyprus. He says that a total of $210,000 was lent by his estate and he intends to repay this money to Mr S’s children.
The brother Mr S has since died and his estate settled through the courts in Cyprus. The husband has received some land which is referred to later. The receipt of the money is shown in the cashbooks. There is no documentation for the loan. From the husband's description they appear to be loans to the business, either the (omitted) business or the family trust company. The business ceased operating in 1994 and the two properties Property 1 and Property 2 were sold in 2002/2003.
The wife disputes that money was ever loaned by Mr S. The documentary evidence, the cashbooks, shows this money is recorded as being received from Mr S. The amount of time might suggest that the children are not pressing for the money but since the husband acknowledges that it exists they should be able to recover if they wished. Since the money was received and the husband acknowledges that the debt exists it should be included as a liability.
At the commencement of cohabitation the husband’s property in Cyprus was:
(omitted) Plot (omitted), current value  $216,216
(omitted) Plot (omitted), current value  $ 47,297
(omitted) Plot (omitted), current value  $ 20,270
(omitted) Plot (omitted), current value  $ 70,270
(omitted) Plot (omitted), current value  $222,972
The properties were all given to the husband, (omitted) Plot (omitted) by his mother, and the rest by his father.
There is no reliable evidence of the value of these properties at the commencement of cohabitation. The husband produced a schedule which showed the values used by the Cyprus Lands Department for taxation purposes at 1 January 1980 (annexure KI-7 to his affidavit sworn 21 September 2010). The schedule is of the property now owned by the parties in Cyprus. The total value is about A$40,000. The husband does not accept that they are accurate market values. He says they were similar to Council valuations in Australia and used for the purpose of raising taxation.
There is no evidence of the relationship between taxation valuations and actual valuations in Cyprus. In the absence of such evidence I cannot form any conclusion about the relationship between these valuations and actual valuations at 1 January 1980.
In 2000 the husband received an offer of A$36,000 for (omitted). The wife says the husband did not accept the offer because he wanted to develop the land. The husband said he cancelled the sale when he found that the agent through a Power of Attorney had sold it for $60,000. He then cancelled the sale and decided to develop the land. The land has since had trees planted and (omitted) installed. The wife assisted in this enterprise, something discussed later, and funds from the sale of properties and interest earned in Australia were used.
At or about the commencement of the relationship the property in Australia was:
Property R, current value  $725,000
Property A, purchased November
1984 value when sold in 1998  $ 70,000
Balance of cash from sale of (omitted)
Property 1, (omitted) sold, in 2002 for                $280,000
Property 2 sold in 2005 for   $338,629
After (omitted) ceased business in 1994 the parties lived on the income from the rent from Property 1 and Property 2. After Property 2 was built it was used by the (omitted) business for two or three years and then rented out until it was sold in 2005.
The sale of Property 1 yielded a net result of $121,791 and Property 2 $338,629. After the sale of both properties the parties lived on the interest and occasionally drew down on the capital.
Shortly after the parties commenced cohabitation they purchased Property M the property next door to the residence in Property R. It was used as an extension of the family home and for some time to store (omitted). The property is now three quarters owned by the husband's son X and one quarter by the husband.
In 1988 X, the husband’s son and C, the wife’s son were living in Property M. The husband says that the business was struggling and there was not sufficient income to maintain the mortgage. X agreed to buy half the property. The valuation agreed upon was $90,000. X had saved $15,000 and borrowed $60,000. These amounts were used to refinance the mortgage which was approximately $75,000. X therefore purchased half the property for $45,000 and lent $30,000 to refinance the balance of the mortgage.
The husband says that at the time he agreed with X that if he wanted to purchase a further 25% the purchase price would again be 25% of $90,000, which is $22,500. The wife disputes that there is such an agreement.
The husband says that in 1997 the wife told him she wanted some money to purchase a property for her children. He says that the wife agreed to transfer her quarter interest in Property M to X. The wife did so. The husband says that the agreed price was $22,500 rounded up to $23,000. The husband says that in order to repay the amount of $30,000 X advanced when he first bought half the property the wife and he instructed the solicitors to prepare a contract of sale providing for a purchase price of $40,000 less a deposit of $17,000 "being monies by Vendor to purchaser the debt and repayment is hereby confirmed by the parties”.
The wife says she was coerced into selling her quarter share of the property for $40,000. Nevertheless $23,000 was paid. The wife and her three children purchased a flat in Property W for $70,000. In 1999 the wife and her children sold the flat for $200,000 and after paying off the mortgage purchased a house at Property T for $205,000. The wife now lives there with two of her children.
The husband has a quarter interest in Property M and the wife has a quarter interest in Property T. Market valuations are agreed. The dispute over Property M is whether the market valuation should be used or what the husband asserts is the agreed sale price to X.
The agreement between the husband and X is not in writing, or at least there is nothing produced in evidence in these proceedings, so a safe inference is that there is nothing in writing. X would have no difficulty in establishing the agreement because the husband acknowledges it. It seems unlikely that there will be any dispute between X and the husband. If X wished to purchase the husband’s quarter share now for $22,500 or $23,000 then the husband would sell.
If at some stage in the future X wished to purchase the property from his father's estate, the attitude of the executor or administrator and beneficiaries is not known. They may allege that the contract is unenforceable because it is not in writing, but if that happened, X could claim part performance or perhaps a remedy based upon representations.
There is no need to analyse possible causes of action in a civil dispute about the husband's share in Property M. I could not form any conclusions about the possibilities of success.

The parties are agreed that however the property is distributed the husband should retain his interest in Property M. The question is how this property should be valued for the purpose of the first step in the four step property process.
The wife alleges that she was coerced into selling a quarter share of Property M for $40,000. She makes no more than the assertion and so she has accepted that X was entitled to purchase the property in the manner the husband says, which means that he made a payment of $22,500 rounded up to $23,000 for the quarter share.
I accept the husband's assertion that without X’s assistance in purchasing a quarter share and borrowing additional money he could not have continued paying the mortgage in 1998. I accept that there was an agreement that X could purchase the remaining quarter share for $22,500. The wife asserts there was no such agreement but the sale of her quarter share to X for effectively $23,000, admittedly with an allegation of coercion, is an acknowledgment that there was such an agreement.
These considerations mean that the proper way to value the husband’s quarter share in Property M is in accordance with the agreement made with X, which is an amount of $22,500. Without the assistance of X in 1988 the husband’s quarter share in Property M would no longer exist. The agreement that X could purchase it for $22,500 is an essential part of that assistance.
Since the commencement of cohabitation the husband has acquired and sold properties in Cyprus.
The husband's brother Mr S died in 1999. The settlement of his estate was approved by the courts in Cyprus. The husband acquired Mr S’s land holdings in Cyprus for a payment of $120,000. He paid $30,000 to Mr S’s widow in Cyprus from Cyprus land sales and $90,000 to Mr S’s three children living in Australia. He funded the payment from the overdraft with the ANZ Bank in the financial year ended June 2001.
The husband and wife acquired Lot (omitted) in 2004 for $60,000. They own the property in equal shares. The purchase price was borrowed from the Bank of Cyprus. The loan was repaid from the proceeds of some other properties and money from Australia.
The husband's history of the acquisition of properties in Cyprus after cohabitation is set out in an affidavit he completed in 2010. The holding of land in trust for his brother is disputed, but otherwise there appears to be no dispute. The history is:
a)In 2001 the husband's father gifted various entitlements to trees on land owned by other people;
b)(omitted) is one of the parcels of land acquired from Mr S's estate. In 2003 the husband transferred one half to the wife;
c)In 1995 the husband's mother gifted the husband a 50% share in (omitted). The remainder is owned by a cousin. The husband says it has been compulsory acquired by the (omitted) and he and his cousin are unable to use it or sell it. He says they receive $9.00 per annum rent;
d)(omitted) was a gift from the husband's mother in 1995. The husband originally owned 2/8 and subsequently acquired four more shares to a total of 6/8. The other shares are owned by cousins;
e)In 2001 the husband purchased two acres of a property in (omitted) from a cousin for $6,000. In 2008 he purchased a further two acres from another cousin for $15,000. He has 25% of the property with the remainder divided between cousins. The property has been compulsory acquired by the (omitted) and the husband receives $72 per annum rent;
f)In 2001 the husband purchased 25% of a property in (omitted) from a cousin for $1,000. In 2008 he purchased another 25% from a cousin for $2,500. He owns half the property. The other half is owned by cousins;
g)In 1995 the husband's mother gave him a half share in the property located in (omitted). The other half is owned by a cousin;
h)(omitted) was gifted to the husband by his mother in about 1994;
i)The husband purchased (omitted) in 2000 for $15,000. He owns a one third share with cousins;
j)(omitted) was gifted to the husband by his mother in 1994;
k)The husband acquired (omitted) from his cousin for $15,000 in 2001. He paid a property developer in Cyprus $17,000 to develop the land;
l)The (omitted) Farm: (omitted), the husband says, has been owned by his family for at lest 105 years. During the 1940s his paternal grandfather gave half to the husband’s father and half to the husband's uncle. In 1979 the husband's father gave the husband’s brother Mr S his half interest. In about 1996 the husband’s father acquired his uncle’s half share and registered it in the husband's name. The husband says the share was a gift. He says that Mr S's widow's insisted the whole of the property be included in Mr S’s estate and the husband acquired the (omitted) farm as part of his acquisition of Mr S’s estate;
m)The husband's grandfather built the house in (omitted). The husband says it was built for his mother and his parents lived in it from 1933 when they married until the family came to Australia in 1955. Over the period of 10 years when the wife and the husband went to Cyprus they usually stayed in this house. In 1994 the husband's mother gave the house to Mr S and the husband in equal shares and after Mr S’s death the husband acquired Mr S’s share from his estate;
n)The husband says that in 1994 his mother gave him and Mr S a 2/8 share in the (omitted) residential land to be held in trust for their brother Mr J in England. In 2000 he acquired Mr S's interest and in the following year purchased a 1/8 share from his first cousin for $24,000. The husband says that he now owns a 5/8 share of which a 4/8 share is held on trust for his brother. Cousins own the remaining shares.
Throughout the relationship the husband sold interests in a number of properties in Cyprus. He details it in his September 2010 affidavit. There is no need to detail the sales. The money was largely expended in funding purchases.
The husband's father died in April 2010. He left 80% of his estate to the husband and 20% to his brother Mr P. The estate consists of a house in (omitted). It has not been valued, but there was a common assumption during the hearing that it has a value in excess of $1 million.
The wife's case does not assert that it should be included as part of the property but that it has to be taken into account under s.75 (2).
The husband’s brother Mr P lived there from 1957 until he died. The husband's brother Mr P cared for his father until about four months before his death when his father went into a nursing home. Mr P is 64 or 65 and in good health. The husband says he will not sell or borrow against the property while Mr P is alive and chooses to live there. Mr P is 9 years younger than him and in good health there is every likelihood that the husband will die before Mr P and the husband will receive no financial benefit from the property.
The husband says from his conversations with Mr P that if the husband did not allow him to live there Mr P would take legal action.
The husband has a sister, Ms Z, who lives in Melbourne. The husband says that he believes his sister is unhappy because she has not been provided for in her father's will.
The brother Mr J, who lives in England, has a gambling problem according to the husband, and hence the property is held in trust. The husband says he believes Mr J is also unhappy that he has received nothing from his father's will.
Section 91 of the Administration and Probate Act 1958 gives the Supreme Court of Victoria the power to order that “provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision”.
Given the length of time that the husband's brother Mr P lived in their parent's house and cared for the husband's father he would have prospects of success if he made an application under s.91 of the Administration and Probate Act 1958. Whether the other children would cannot be assessed. Mr P’s prospect of success is sufficient to categorize the husband's attitude to the (omitted) property as a reasonable one.
The wife has a 1/4 interest in the property in Property T. Her 1/4 interest is valued at $121,250. The property was purchased for $75,000. The wife paid $22,500 for her share obtained from the sale of a 1/4 share in Property M to X. The property is subject to a mortgage which secures money borrowed by the wife’s children to pay, or assist in paying, for their share.
The husband says that the wife's share in Property T should be included in the matrimonial asset without taking into account the mortgage. The wife says that a quarter of the mortgage should be taken into account.
The wife is liable for payment of the mortgage. A quarter should be taken into account in determining the assets and liabilities.
The husband says that his interest in the (omitted) land is held in trust for his brother who lives in England. His brother has a gambling problem and so there is a logical reason why his mother would want the land held in trust. That the husband might falsely claim the existence of a trust in relation to one piece of land is improbable. Accept that the land is held in trust and so should not be included in the assets and liabilities.

Assets and liabilities

The assets and liabilities are as in the agreed values list with the following adjustments:
a)The value of the husband's interest in Property M is $23,000;
b)The money owed to the husband's brother Mr S by the husband of $210,000 is to be taken into account as a liability;
c)The husband's interest in the residential land (omitted) is excluded;
d)A quarter of the mortgage loan on Property T is to be taken into account.

Contributions

The wife contributed a small amount of money and the property in Greece at the commencement of cohabitation. She earned some money from (omitted) and (omitted) in the course of the relationship. The parties dispute how much but whatever it is, it is very small compared to the husband's contribution. Overwhelmingly, all financial contribution to the acquisition, maintenance and improvement of the parties’ property was made by the husband. Much of the contribution was from his business activities in the (omitted) businesses and gifts and acquisition of property in Cyprus.
The history of the acquisition of property is set out above. Virtually all of the sale price from the Property 1 & 2 properties has now been expended. Consent orders made in 2010 provided first for each party to receive $30,000 in cash from amounts held in the Bank of Cyprus and then a further $18,000 each.
The wife made a significant contribution as homemaker and carer for the children. She took on the task of caring for a blended family of six children and the husband acknowledges that she did it well. X and C moved into Property M but the wife continued to cook and clean for them.
The husband says that X and C moved out in 1998. They may have been living in Property M prior to that. Y moved out in 1991. B was married and moved out in 1993. Z moved out in 1997 A lived with the family until 2005 except for 1996.
Following the husband's retirement in 1994 the parties for a number of years spent several months in the middle of the year in Cyprus. The husband’s father accompanied him on many of these occasions. On one occasion the wife travelled to Greece to visit relatives.
The parties’ affidavits contain some dispute about the extent of domestic duties undertaken by the wife and the husband's father in Cyprus. Cross examination showed that the majority of cooking and cleaning and other domestic duties were undertaken by the wife.
There is a dispute between the parties about the extent of the wife's non-financial contribution to improving properties in Cyprus in planting and watering (omitted) trees. She says she assisted in the planting of hundreds of (omitted) trees. The husband says he and the wife planted about a hundred and the rest were planted by employed labour.
The wife says that she spent many hours each day watering the trees. The husband says that prior to the installation of a bore, pump and irrigation system the trees had to be watered by hand. This involved attending at the properties on the days when water was available and using others to water by hand. Once an irrigation system was installed it had to be checked to ensure that each of the irrigation points was clear and operating properly.
Some of the properties in Cyprus had (omitted) trees, and the wife assisted with these trees including picking the (omitted). The (omitted) was sufficient only for the parties’ own consumption, not for sale.
The impression I have is that the husband did not regard the work of planting and tending (omitted) trees as a chore whereas the wife did. The wife may have exaggerated the amount of effort and time required and the husband has done the opposite. Whatever the truth is the work of improving the properties was carried out and the wife did her share either by direct labour or by keeping house while the husband worked including organizing and supervising work done by others. There is no evidence of the amount of the increase in value the trees and irrigation services may have brought about. The husband’s evidence is that the majority of the trees were planted by the paid labour and I accept that evidence. The majority of expenditure was in the bore, pump and irrigation pipes.
The wife asserts that a consideration in looking at contributions is the amount of money the husband spent on his children as opposed to her children. In particular the ledger shows a total of about $59,000 given to X or spent on his behalf.
The husband provided a home and the living expenses for all the children, his own and the wife’s. There is no requirement for equality in the treatment of children or stepchildren. The highest the wife's argument can be put is to compare it with the cases which have looked at wasteful and extravagant spending such as gambling. A number of the cases are referred to by the Full Court of the Family Court of Australia in Crampton and Crampton in (2006) FLC ¶93 269. The onus in on the wife to prove that the husband was reckless, wanton or negligent in his expenditure.
The husband's lifestyle was modest, as was the wife’s. If, over the period of the marriage, the husband had spent $59,000, or some tens of thousands of dollars more on his own entertainment over and above the normal family outings and entertainment, it would not have been unreasonable. There is no basis for an adjustment of contributions against the husband because of money he spent on his children. It was not reckless, wanton or negligent.
I take into account that the house in Property R was the matrimonial home and that the house in Property M was effectively an extension of the matrimonial home. The house in the village in (omitted) was a holiday house but one that was used as the matrimonial residence for a substantial part of the year over a period of 10 years. The wife therefore cared for and contributed to the maintenance of these properties and carried out her homemaker duties in each.
The husband’s initial contribution was substantial. Much of the property acquired during the marriage was given to him by his parents. Some was acquired with money earned in the course of the marriage. Some property was sold and replaced with other property. The offers of either $35,000 or $60,000 in 2000 for (omitted), now valued at $216,216 suggests that there has been a significant increase in value during the last 10 years. The same can be said for (omitted) (joint) Lot (omitted) was purchased in 2004 for $60,000. Now its value is $270,270.
I have already described the wife's contribution as a homemaker and carer for the children. She also made a nonfinancial contribution to the improvement of property in Cyprus.
In Pierce and Pierce (1998) FamCA 74, (1999) FLC ¶92-844 the Full Court said at FamCA [28] FLC 85,881:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home:
The parties cohabited for 26 years. The wife made a very strong contribution as homemaker and carer for the children, particularly in the early years with a household of 8 people and a blended family of six children. She continued her contribution after the children were grown up including helping care for the husband's father.
Nevertheless the husband made most of the financial contribution as already described. The appropriate assessment of contributions is 75% by the husband and 25% by the wife.

Section 75(2)

The husband is 73 and the wife 67. Neither works and neither is entitled to an old-age pension because of the amount of property they own.
The difference between the parties situation so far as property and financial resources is concerned is that the husband has a greater amount of property. The only other difference is that the wife is younger and so has a greater life expectancy. These differences mean there should be an adjustment if favour of the wife of 5%.

Just and equitable

The husband led evidence about the traditional obligation of keeping property in Cyprus within the family and of passing it on to the next generation. That cannot affect the determination of the proportion of property to be distributed to each party, but it can affect what is just and equitable in the way the orders are made. Both parties put proposals as to how the distribution should be effected, but based on that party’s proposal for the percentage that party should receive.
The conclusions I have reached about what assets and liabilities should be included and at what value, and that the property should be divided 70% to the husband and 30% to the wife is different to the proposals of each party. 20% capital gains tax is payable on the sale of property in Cyprus and that may effect the way the distribution of property is carried out.
The determination of what is the just and equitable way to put into effect the proposed order distributing the property 70% to the husband and 30% to the wife cannot be done with fairness without giving the parties the opportunity to submit their proposals for the orders, and so I will order that each do so

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 22 December 2011