Ismail v Elfar
[2011] FamCA 716
•9 September 2011
FAMILY COURT OF AUSTRALIA
| ISMAIL & ELFAR | [2011] FamCA 716 |
| FAMILY LAW - PROPERTY SETTLEMENT - Non-disclosure of assets - Long marriage - One party conceals monies in children's bank accounts – Small adjustment in relation to domestic violence |
| Family Law Act 1975 (Cth) |
| Townsend & Townsend (1995) FLC 92-569 Farnell & Farnell (1996) FLC 92-681 Chorn & Hopkins (2004) FLC 93-204 Omacini & Omacini (2005) FLC 93-281 Kennon & Kennon (1997) FLC 92-757 Weir & Weir (1993) FLC 92-338 Black & Kelner (1992) FLC 92-287 Tomesetti & Tomesetti (2000) FLC 93-023 |
| APPLICANT: | Ms Ismail |
| RESPONDENT: | Mr Elfar |
| FILE NUMBER: | PAC | 2898 | of | 2007 |
| DATE DELIVERED: | 9 September 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATES: | 17, 18 & 19 November 2008; 1, 2 and 3 June 2009; 27 and 28 January 2010; 24 and 25 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rich |
| SOLICITOR FOR THE APPLICANT: | Sterling Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | John Spence & Associates, Solicitors |
Orders
That the husband pay to the wife, within two (2) months of the date of these orders or such other time as the parties shall in writing agree, the sum of $555,675.
That the husband do all things and execute all documents necessary to discharge the existing mortgage secured over the property situate and known as M Street, Sydney Suburb 1 (hereinafter called “the property”) so as to relieve the wife from any obligation whatsoever in respect of any existing mortgage.
That the husband simultaneously with payment to the wife, hand to the wife documents evidencing the discharge of the existing mortgage.
That immediately upon payment of the sum of money required to be paid pursuant to Order 1 above, and upon the husband complying with Orders 2 and 3 above, the wife shall provide to the husband a memorandum of transfer in registrable form together with any other necessary document required to transfer to the husband her right, title and interest in the property, and to transfer to the husband the ownership of the contents in and about the said property.
That in the event that the husband does not pay the sum ordered to be paid in Order 1 above, within the time specified, and does not comply with Orders 2 and 3 above then the wife shall within a further period of two (2) months (ie, within four (4) months of the date of these Orders) or such other time as the parties shall in writing agree, pay to the husband the sum of $99,344.
That the wife do all things and execute all documents necessary to discharge the existing mortgage secured over the property so as to relieve the husband from any obligation whatsoever in respect of any existing mortgage.
That the wife simultaneously with payment to the husband, hand to the husband documents evidencing the discharge of the existing mortgage.
That immediately upon payment of the sum of money to be paid pursuant to Order 5 above and upon the wife complying with Orders 6 and 7 above the husband shall provide to the wife a memorandum of transfer in registrable form together with any other necessary documents required to transfer to the wife his right, title and interest in the property, and to transfer to the wife ownership of the contents in and about the said property.
That in the event that the wife does not pay the sum ordered to be paid in Order 5 above within the time specified, and does not comply with Orders 6 and 7 above then the parties shall do all acts and execute all documents necessary to place the property on the market for sale, by private treaty, at a price agreed between the parties, or failing agreement at a price to be fixed by a valuer or real estate agent nominated by the President for the time being of the New South Wales Chapter of the Australian Institute of Valuers.
In the event that a binding exchange of contracts for the property is not effected within a further three (3) months (that is within seven (7) months of these orders) or such other period as the parties shall in writing agree then the parties shall do all things and execute all documents necessary to sell the property by public auction. The Auctioneer shall be as agreed between the parties and failing agreement shall be as nominated by the President for the time being of the New South Wales Chapter of the Australian Institute of Valuers.
The parties shall endeavour to agree upon a reserve price for the sale by auction and in the event they are unable to do so the reserve price shall be as fixed by the Auctioneer on the day of the auction sale.
Upon completion of any sale pursuant to these orders the parties shall deal with and distribute the proceeds of sale as follows:
(a)In payment of all legal fees and disbursements properly incurred in such sale.
(b)In payment of all agents fees and commissions including auction expenses properly incurred in such sale.
(c)In payment and discharge of any mortgage secured over the subject property.
(d)In payment to the wife of 85 percent of the figure then arrived at.
(e) In payment to the husband of the balance then remaining.
That in the event that the property is sold pursuant to Orders 9 or 10 above then the husband shall within seven (7) days of an exchange of contracts for that sale being effected notify the wife in writing of his intention to acquire the contents in and about the property. Thereafter the husband shall no later than three (3) days prior to completion of the sale pay to the wife the sum of $5,000 and shall remove such contents from the property by no later than midday on the day prior to the day for completion of any sale.
That in the event that the husband does not within the time provided in Order 13 above notify the wife in writing of his intention to acquire the contents then the wife shall be entitled, within a further seven (7) days (fourteen (14) days from exchange of contracts being effected) notify the husband in writing of her intention to acquire the contents. The wife shall then no later than three (3) days prior to the completion of the sale pay to the husband the sum of $5,000 and shall remove the contents from the property by no later than midday on the day prior to the day for completion of any sale.
In the event that neither party gives the notice to the other party in accordance with Orders 13 and 14 above then the parties shall do all acts and things necessary to sell the contents in and about the said property and to divide the net proceeds of sale equally between themselves.
That in the event that the property is transferred to the wife, pursuant to the provisions of Order 5 above or is sold pursuant to the provisions of Order 9 or 10 above then the husband shall vacate the home no later than 12 noon on the day before the day fixed for either the wife’s payment to him of the sum specified in Order 5 above or completion of the sale to any purchaser of the property pursuant to Orders 9 or 10, so as to give vacant possession to either the wife or the purchaser as the case may be.
That subject to the foregoing orders each party shall be entitled both at law and in equity to the exclusion of the other party to all real property, personal property, monies on deposit, motor vehicles, contents and any furniture, contents or chattels whatsoever in the possession or control of that party.
I grant liberty to either party liberty to relist the matter upon seven (7) days notice in relation to the implementation of these orders or any of them.
I dismiss all outstanding applications and cross applications.
I remove all issues from the pending cases list.
I order that all material produced on subpoena be returned not before 56 days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Ismail & Elfar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2898 of 2007
| Ms Ismail |
Applicant
And
| Mr Elfar |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter concerns the distribution of the parties’ property following the breakdown of their marriage. The matter was heard on four different occasions. It commenced before me on 17 October 2008 and ran for three days. It was then adjourned to 1 June 2009 and occupied a further three days. It occupied two days in January 2010 and a further two days in May 2010.
In the first three days of the hearing the wife collapsed in court whilst giving evidence and was unable to go back into the witness box. She refused to go to hospital however. Thereafter she was able to sit in court while I heard evidence from her sister and her son.
On the next occasion I heard evidence from daughters of the parties. I subsequently heard evidence from the husband and various experts called in his case.
The parties are at odds in respect of all things. It is the wife’s case that she was the subject of extreme violence throughout the marriage. This is a matter she contends must be taken into account in her favour. She says that the husband was verbally abusive towards her. The husband denies abuse in any form. It is clear however that the wife obtained an award from the Victims Compensation Tribunal in respect of injuries caused her by the husband.
In this matter I find it difficult to reconcile the amounts of money that the parties and their children speak about when balanced with what appear to be the actual earnings of the parties and those witnesses at any given time.
I was uncertain as to the wife’s past medical condition and I was caused some concern by the evidence of her daughter M who is described as her caretaker and who indeed receives a benefit as a carer.
The issue of valuation is of great difficulty in this case. The matters of concern in this regard are the value of the good will of the husband’s business and the value of stock held in that business.
In so far as the husband’s business and stock are concerned the husband as I understand it says that whilst he provided material to his accountant he never read the tax returns which assert certain values to be attributed to the stock held by the business.
One of the most significant matters to arise in this case was whether or not the husband indeed engaged in placing money in the accounts of his children. I will return to that later in these reasons for Judgment.
A significant number of persons gave evidence before me in this matter. In addition to the parties there were a number of their children and experts or so called experts who endeavoured to give evidence in relation to valuation of property, businesses and stock.
BRIEF CHRONOLOGY
1963 Husband born.
1966 Wife born.
November 1982 Parties marry.
May 1984 N born.
May 1986 O born.
October 1988 Z born.
June 1990 M born.
February 1992 L born.
January 1994 F born.
9 August 2005 Parties separate when wife leaves former matrimonial home.
WIFE’S DOCUMENTS
Amended Application filed 21 May 2010.
Amended Application filed 29 October 2007.
Wife’s Affidavit sworn 5 March 2007 filed 16 March 2007.
Wife’s Affidavit sworn 26 October 2008 filed 27 October 2008.
Wife’s Statement of Financial Circumstances verified by Affidavit sworn 18 July 2008 filed 23 July 2008.
Affidavit of Tom Zreika (wife’s solicitor) sworn 21 February 2008 filed 28 February 2008.
Affidavit of Mr W sworn 2 September 2008 filed 2 October 2008.
Affidavit of O sworn 20 October 2008 filed 21 October 2008.
Affidavit of M sworn 20 October 2008 filed 21 October 2008.
Affidavit of Ms I (wife’s sister) sworn 21 October 2008 filed 23 October 2008.
Affidavit of Mr H sworn 16 October 2008 filed 16 October 2008.
HUSBAND’S DOCUMENTS
Amended Response filed 20 February 2008.
Affidavit of the husband sworn 9 October 2008 filed 9 October 2008.
Husband’s Statement of Financial Circumstances verified by Affidavit sworn 11 November 2008 filed 13 November 2008.
Affidavit of O sworn 10 November 2008 filed 13 November 2008.
Affidavit of N sworn 11 November 2008 filed 13 November 2008.
Affidavit of Z sworn 4 December 2009 e-filed 23 December 2009.
THE WIFE’S CASE
The wife asserts that the husband was violent towards her from January 1983 onwards. She claims she was subjected to verbal abuse. The wife asserts she was required to work in her parents in law’s hospitality business for long hours and very little money. She says that she was performing all household tasks for that extended family.
The wife said at all times that the husband sought to separate her from her own family.
She asserts that she, and to a lesser extent the husband, worked in the husband’s brother’s shop. She asserts that they earned an amount in excess of $50,000.
The wife asserts the husband invested a significant amount of money, in excess of $130,000, in shares and sustained a loss for the whole of that amount.
She asserts that she and the husband purchased a retail shop which she says she spent long hours working in.
It is the wife’s case that the husband was controlling as to financial matters. Until she began to take and use the family allowance for her own purposes she had no income of her own. She asserts that she is presently unable to work.
As the matter proceeded it became apparent that the wife was asserting through evidence and particularly by means of cross examination that the husband had placed his money in accounts of two of the parties’ children to avoid it being disclosed or taken into account.
THE HUSBAND’S CASE
The husband’s case is that he did not abuse or assault the wife. He says he in turn was assaulted in 1999 by the wife’s father and others for which he spent time in hospital. He received a payment pursuant to victims compensation. He asserts that the wife worked only for brief periods during the marriage.
He says that he purchased the retail shop by means of borrowings. He said that he and the children attended to cleaning in the household. It is his case that the wife performed very little of the chores involved in the household, although he concedes that she did shop for the family. He denies that money in either of the children’s accounts was his and appears to assert that he has at no time tried to hide or disguise monies.
THE EVIDENCE BEFORE ME
The first witness called was the wife. By leave she gave evidence to her counsel. She indicated that she had always apologised for things that she had not done and that when her husband hit her he would say that it was her fault, that you made me hit you. She gave evidence of her husband telling her that he had bought shares.
She said the husband had bought a property with his parents which when sold realised him about $13,000. She said that he had lost a significant proportion of that on the stock market.
She spoke of an occasion in the kitchen when she had been slapped and had received a black eye. She said that she had been kicked out of their bedroom and slept in the children’s room. She said she had received a black eye about six times.
She gave evidence about the contents of the affidavits of O and Z.
The wife then commenced in cross examination to Ms Judge. She was asked questions about wearing a head scarf and she said that she had not worn a scarf since separation. She said that she was lost because of the damage her husband had caused her. She said she had lost her faith because of what he did. She said that she had worn the scarf for three years after the birth of their first child. She said the husband was Muslim but not devout. She asserted he never prayed.
She said that she had taken medication since at least February 2006, being medication of three types. She said she took antidepressant, Zanex and Epillum. She said she had trouble remembering to take her medication. She was trying to block out the past. She could not recall her dosage in March 2007. She said she had a clear memory of going to a refuge and a clear memory when she swore her affidavit. It was put to her that much of her affidavit was reconstructed which she said was not true, that that which she asserted had occurred. It was put to her that her husband had never sought to prevent her wearing a head scarf. She said this was not true. There was discussion about the repair to a tooth that was missing at the time of marriage. It was put to the wife that the husband gave her money to have the matter attended to which she denied. It was then asserted that the injury to the teeth had been caused by the husband.
It was put to her that she had told her son O that she would give him money. She said that she had worked for her kids and that she wanted them to have a better life than she did. She said that she had not told either O or M that she would give them money if they swore affidavits. She did not ask for support or for them to attend at court. They had come of their own choice.
Asked about an episode in June 2006 the wife said that she had been compelled to bite her daughter M on the wrist to get her handbag back. She said there was an episode where some of her children had cut her hair.
She said the children would call the police if she went to the house. She said that she had pleaded guilty. She denied punching Z in December 2006. She denied ever calling Z during an argument a “fucking bitch”.
She denied she had thrown things at Z. She said things had been thrown at the husband to protect herself when he was bashing her. She said firstly that she had never hurt her children, and then said only when she had to. It was put to her that she had punched a landlord’s wife whilst renting property at Sydney Suburb 2. She denied that she had punched that person, but said she had pushed the landlord’s wife out so that she could close the door.
In relation to an episode at school her son O had told her that someone had grabbed him so she went to the Principal. She wanted someone charged. She approached the woman involved and grabbed her and punched her on the arm.
She said her brother had been killed in March 2003 and that she had grieved but had recovered. She denied taking Panadol forte. She denied that she slept a lot after her brother’s death.
She said she and the husband screamed at each other.
She gave evidence of the husband being assaulted near a Mosque as a result of which he was hospitalised for four days. She said she did not notice any change in his behaviour. He wanted to sleep and he got angry.
It was put to her that she knew her father had been involved in the assault on her husband and said that she did not know. She did speak to police. She had made enquiries at the Mosque but nobody knew what happened. She did not know if her father had been charged, but she did know that the husband had made a claim for Victim’s Compensation. She went to court with him. She believed everything the husband told her.
She said she obeyed her husband as a Muslim, thus obeying God. All she wanted her to do was follow the Muslim religion.
She said she was subsequently surprised to see her daughter working at McDonalds. There was an altercation. She said she was not angry, but she did raise her voice a little. It was put to her that she had no contact with some of the children for three months, but she said she was always popping around to the former matrimonial home.
It was put to her that she had arranged to have water, gas and electricity cut off to the home. She said that three weeks after she left she told the husband to take her name off the accounts.
She said she had probably sent copies of his text to the children. She told him that she had someone in her life.
She agreed that at a Local Court on in early May 2006 in respect to an application for an Apprehended Violence Order Z gave evidence for her father. The child apparently said that her mother sent her material that had been sent to the husband. The wife denied this and said she would text the children saying she loved them. She agreed that she had sent some material the husband had sent them. She had told the children she was there for them and she was sick.
She said she took $40,000 out of the parties’ account at separation. She said that she took money out of the joint account which was a line of credit that should not have been linked to the business account. She said she had contacted the bank because the husband was forging her signature. She conceded that she had never said this before.
She said she refused to let the husband see the children.
She said the shop was open from 9.00 am to 5.30 pm and the husband was away from home during that period.
She then asserted that the husband had gone out of his way to make her life hell.
She said that when she took $40,000 in cash the Veridian line of credit was secured over the home with a present balance of approximately $130,000. She said she took an amount of money so as to draw down the line of credit to its limit. She said it was not her intention to cause him cost or expense in relation to the money withdrawn, she said she did it because he would not let her see the children. She had never made mention of the difficulties to the hospital authorities.
It was put to her that the husband had never struck or kicked her, nor kicked her out of bed. She said that on many occasions he had belittled and humiliated her. She said that she had never hit him, only when she was struggling.
She said the husband would not hurt her whilst she was pregnant. She said that when she took the $40,000 she was living with her sister Ms I. She had given her sister money. She was not sure when she received the last family allowance. She was not told of what she had to do in respect of the allowance.
She said she did not care about the money. She went to the refuge to protect her family and lived there for three months in early 2006. She had nothing by the time she went to the refuge. She had paid her lawyers $12,500.
She said she gave Ms I money for her car. She then said she paid to fix Ms I’s car, her own car and her house for all up approximately $2,000. She said that as far as the Toyota vehicle 1 was concerned the husband had agreed to sign it over and the vehicle was now being driven by her son and herself.
She said her son was living with her. Her daughters had rang the police on him.
M did the Higher School Certificate in 2007. She had been asked to go to school because her daughter was struggling. She said M was now her carer and received an allowance in this regard. She lets her daughter go out, indeed she had said the child went out every night. She said that she (the wife) sleeps on the lounge with nothing and M sleeps in the bed. She said her lounge is her safety zone. She said that her friends drag her out sometimes but that she does not go out to clubs.
It was put to her that she left the husband to contact the school. She said he would not let her do this. She said she received no said figure by way of board from her son and she receives social security. She said that the husband’s family had owned retail shops. She said she had told the husband to buy a retail shop when he wanted to purchase a shop that sold a different type of stock.
She said that she trusted the husband but at the same time was over borne by him. She said it was not true that his cousin negotiated for the retail shop. It was then put to her that the husband did the bulk of the negotiations which she said was not true. She said she was dealing with the vendor and the solicitors. He had changed premises where the business was conducted to obtain a lesser rent. She said that she was good at retail but was unable to work because of depression, headaches, pain and suffering. She wanted to focus on her children and her health. She said that when she swore her affidavit she felt that she was ok.
She said that most of the time throughout the marriage she was barely able to manage and suffering assaults every day.
She said that since March 2007 she had not been able to cope, she has nightmares. She said that if she received money she would want to help her children if they came to her.
She agreed that she contacted solicitors sometimes about his Victim’s Compensation claim. She said that he faked the claim so he did not have to work. She said his parents did not help. She said he worked in the retail shop seven days a week and he would come in late some days.
She said that they had run his brother’s shop whilst his brother was in gaol for a term of six months. It was put to her that this was done by the husband’s parents and she said this was not true. She said that they had worked in the shop for close to a year. She said she had always had differences with the husband’s parents.
She said the husband had told her that he had to pay $400 towards the $25,000 loan and that he later sold his shares. Originally she believed they were sold for $20,000 but now believed they had realised $13,000.
She said in 1990 his parents had purchased a house in both the parties’ names. She said that the husband borrowed $7,000 from his mother, $4,000 from his aunty and $2,000 from his grandmother. She asserted that the parties had about $50,000 to put in. She said they were receiving rent from a granny flat and any money saved during that period was because of her. She said between 1985 and 1987 they were very happy.
It was put to her that the husband did not lose money on the share market and the wife asserted that he did. She said that he commenced in the stock market in 1985 up to 1989 and then again in 1996 to 2000. She asserted that between 1985 and 1989 he lost over $20,000 a year and between 1996 and 2000 at a guess $130,000 all up. It was put that between 1985 and 1989 the husband did not invest. She asserted that he did. She said that by the time the parties moved to Queensland they had accumulated $50,000 to purchase a property. The wife then said that he put all the shares in her name.
That concluded the evidence on day 2.
On day 3 the court was informed that the wife was ill and unable to continue in cross examination. However it was agreed that other witnesses in the wife’s case would then be called and the matter would continue.
Ms I, the wife’s sister, was then called. She said that the wife had given her $2,000 and there was continuing financial support. She said that she was the wife’s carer when she lived with her and that the wife kept going back to her doctor for changes to her medication. The witness said that as at the date she gave evidence the wife was barely able to swallow medication.
In cross examination she said her son was in court and he was 17. She was not aware he had come into court. She said she never spoke to the husband. She said her sister wanted to pay her back.
She said her sister lived with her at the end of 2005 and the beginning of 2006 and that she was not living with anyone before that.
She said she owned her own home and she had children living with her when the wife moved in. She had employment. She was receiving benefits in the form of a single parent benefit. She said that she knew her sister had a bit less than $40,000 but by the time she gave her the money she (the witness) had spent it all. She knew that she spent a lot on groceries, she bought clothing and underwear for the kids. She said she told the wife not to spend but she didn’t care.
She said that in June 2006 she went to the former matrimonial home and broke the glass of the front door. She had apparently told the police that at the time she was fuming. However she still said that she was not out of control and did not intend to break the glass. I do not accept this.
She said that the wife has driven the Toyota vehicle 1. The vehicle had been stored for a while. She said the wife is ok when on medication. She said the wife had not taken her medication on that day. She said she had been with the wife to one of her specialists. She said she had never heard of Doctor B.
When asked how much was owed at the present time she said she did not expect to be paid back but her sister wanted to pay her. Since separation the wife had been involved in an accident driving the son’s car. She said there was no insurance payout yet. She was not sure if the vehicle was insured in the wife’s name or in the son’s.
She said that M was not working and that she visits friends. She did not know if M worked at a shop.
She said that O had moved between his parents. She was not aware if O was a qualified tradesman.
She remembered the husband being assaulted in 1996 outside a Mosque and that he accused the witnesses’ father and cousin of the assault. She did not know if anyone was convicted and did not know if there had been any compensation paid. She said she had given evidence in Local Court proceedings in early May 2006. It was put to her that she had not heard any threats made and she said that she was not lying. It was put to her that allegations of assault against the husband were a fabrication and she replied we did not make it up. It was put to her that she had not been appropriately serious in respect of her evidence and she said that she should have been more careful. That concluded her evidence.
O was then called. He gave evidence that an amount of $45,000 in his possession was the husband’s money and that he had $10,000 of his own money in that account. The account was closed but he did not know who had taken the funds out. He said that he was not a licensed tradesman and earned approximately $800 per week. In 2006 he had earned between $300 and $600 per week.
In cross examination he said that between January 2005 and November 2008 he had owned four cars. A Mazda, a BMW model 1, a BMW model 2 and a Mercedes. He acquired the Mercedes about three weeks before he gave evidence. He had a $30,000 loan with St George. He had paid $16,000 for the Mercedes. He had paid $20,000 for the BMW model 2. At one stage he asserted he had saved $5,000 in two months.
He said he lives with his mother. He said she doesn’t like taking money off me. He said he has no other source of income.
The BMW model 1 was written off and there was an ongoing claim. As I understand it he subsequently said the vehicle had been insured for $25,000 and he had been paid $16,000.
He said that he had used $20,000 of the husband’s money to buy the BMW model 1. He said it was not the case that his father had warned him and expressed concerns of the company he was keeping. He agreed that on 7 July 2007 he had been to the home while his father was overseas. He had gone with his uncle Mr Y.
His father had said of Mr Y that he was involved in drugs and did not want the witness to associate with him. He had last seen Mr Y about three months ago after he was released from gaol, although he was not aware why he had been in gaol.
Returning to 7 July 2007 he said that he had not called anyone a slut and the police arrived. He had never spoken to his father about the episode. His mother had told him that she would help with his future. He said that his father had asked him to withdraw money which he did. He gave the money to his father. He said there was money in the house at that time. He said it was about 2005 when he made the first deposit of the husband’s money into his account. He said that all withdrawals had to be made by him. He was asked about a withdrawal of approximately $31,000 to leave the account with a nil balance he said that the funds must have gone to another account. He said that he had kept a keycard after he left home and for a period of time had flown regularly to the Gold Coast.
It was put to him that his father never deposited funds to his account and he said his father had done so on many occasions. He did not recall his father ever asking him why he was not working and it was put to him that he had said he was tired of work. He did not agree. He said his father never raised with him going out with his mates. He said that he had stayed at his mother’s home for one night and his father had said he did not want her in the family. He said that his father said on many occasions you are no longer my son. He said that he had never been paid for work he had carried out in the shop. He said his father never cleaned but cooked sometimes.
He said his mother was never angry and never shouted at his father. I do not accept this evidence.
He asserted he was on the side of the truth and that he believed what was happening here (in Court) was wrong. He said he had seen his father strike his mother. He then said they yelled and screamed at each other which seemed to be in direct contradiction to his earlier answer that his mother was never angry and shouted. He said that he helped his mother when she needed it. He gave her $100 to help with rent and he bought occasional items. It was put that his father did not gamble and he said he did. He said money was put into his account soon after the wife left. He said that he was with his father when his father had boasted of a win at gambling. It was put that his father was not a regular gambler and he asserted that he was.
Further he said he knew his father had traded in shares because his father had bragged of it. He said he had seen cash hidden under a spa and he knew this because he hid pornographic videos there. He said in the home there were bundles of $50 and $100 notes which his father had asked him to conceal.
He said his mother had never asked him to hide cash. He said his father was involved in football as he was but there was no mutual enjoyment, his father was obsessive. He said his father had struck him so badly in the past that he could not wear shorts. He spoke of his father loving to put the children in a corner.
He knew his father had been beaten up but he did not know any details.
He said that his license was suspended and he had been caught driving suspended. He had forgotten that in addition to the cars already specified that he had owned a Corolla in April 2008 after the BMW model 1. He said that was bought as a runabout after the BMW model 1 was damaged in an accident. A Falcon motor vehicle he said was his uncle’s car. That vehicle had been written off. He said it was not his business why his uncle had gone to gaol.
He said that he acquired a Camry from his father on 1 April 2006 for $2,500. He said he had spoken to his uncle Mr Y at the date of giving evidence to see how he was just before coming to Court. He said he had been assisting his father to hide money since the acquisition of the business and that those monies were only from the business. He spoke of there being another account but could not identify that account.
He was shown a number of account transactions. He asserted that a deposit of $7,000 made on 19 December 2004 was his father’s money. A further deposit on 6 January 2005 of $16,000 was his father’s money.
A deposit on 22 March 2004 in the sum of $3,000 he said had to be his father’s money and similarly on 10 May 2004 a deposit of $5,650 had to be his father’s money.
Then on 18 May 2004 a withdrawal of $26,000 he said was made by him and given to his father. That left in the account a balance of approximately $207.
As to a deposit in early 2005 of $1,098 he said he was not aware of the source of those funds.
On 7 March and 4 April 2005 there were deposits of $5,000 each which he asserted was his father’s money.
Then on 11 April 2005 a withdrawal of $20,000 was made which he said was given to his father.
On 7 July 2005 there was a further deposit of $5,000 which he said was his father’s money.
On 1 June 2006 a sum of $2,000 was deposited. The witness said that was not his money. On 21 July 2006 there was a deposit of $30,000 which he asserted was his father’s money. On 4 August 2006 there was a withdrawal of $10,000 and on 23 August 2006 a further withdrawal of $10,000. Both of these amounts were paid he asserted to his father. In December 2006 there was a further withdrawal of $8,000 and he said he had no great recollection of this amount. He did then go on to say that he recalled an amount of $18,000 was an insurance payment. However he still asserted that all monies were his father’s.
When the matter resumed the wife was recalled. She gave evidence that she had received approximately $35,000 in August 2008. She was not able to give a precise date. She said that she now had about $14,000. She had paid debts in respect of a car and paid rent. She had not paid any money to her sister or her solicitor. She said the money ie, $35,000 was paid into a bank account and she had documents at home. She said she did not give money to any of her children. She said that she had taken out $20,000 as best as she could remember. She agreed her memory was slow. It was put that she was fabricating or exaggerating this evidence. She denied this.
She said in the early days of the marriage she said she had never told anyone of episodes of self harm. She said she had contemplated self harm. It was put to her that she had psychiatric issues as at the time of marriage which she denied. She denied episodes of mental illness during the marriage. She said that before the marriage ended she was always competent or more than competent. She said she had been depressed without saying when in the last two or three years. She said she had suffered depression and anxiety. She had later made an attempt on her life at which time her husband called the ambulance.
She spoke of Dr G being her general practitioner since 1992 or 1993 and said she was now dead. She had seen five or six general practitioners since the death of Dr G.
She had been prescribed antidepressants and sleeping tablets. She confirmed that she was taking Defalum and Efexor. A later doctor had prescribed other medications for example Zanex. She then said at the present time she was taking Zanex and Epillum.
She denied that the husband had supervised the building of the home, she said he just sat around and talked. It was put to her that two houses were built because of the husband’s efforts and she said this was not true, that she negotiated with the contractors.
She conceded that at one stage she was driving without a license having failed her test a number of times. She said this was because of the husband’s tuition.
She said that when the Sydney Suburb 3 property was purchased, demolished and re-built he had some involvement. She said the husband never talked about the assault upon him by her father.
She said that as far as the business was concerned she had found out about premises becoming available. She said she had told him of this before she left.
It was put that the husband had cleaned with the children in the home and she said this was not true, he did not make beds nor did he wash.
She said that there were no school fees paid for O because she worked in the school canteen. She agreed that at the very end of the relationship she told the husband that he was not good enough and that she should have married someone else.
She said before she left N had cut her hair and that N and the husband had conspired against her.
It was put to her that when she left there were 50 parcels of stock in the home. She said no, there were lots. It was further put to her that when she left she took 30 parcels with her. She said she had only taken a few. She did not take DVDs, a TV, linen, pots and pans.
She conceded that she had gone to the home of her sister in law and pushed her. She described herself as a Muslim woman who obeyed her husband. She said that was God’s will but said that the husband had stripped her of all her rights. This then concluded the wife’s evidence at this stage.
The next witness was M. She gave brief evidence that she was her mother’s carer who provided all of her mother’s medication. She said since November her mother has not been too well and has required double doses. She said that her mother collapses four or five times a day. She said that her mother gets upset at night but when the stress of these proceedings is removed she will probably get better.
To Ms Judge she said her mother sleeps on the lounge by choice. She does not know of any arrangement for payment of board.
She has been receiving a carer’s allowance for approximately a year. She says she has not come under adverse notice in respect of drugs. She said she does not now go to a shop at Sydney Suburb 4 that she used to go to for four or five hours a day. Lately she said she would leave home at 8 and return at 10.30.
She said she left her father’s care in her HSC year. There were problems at school. She denies she intercepted mail addressed to her father from the school. She said that she was not getting on well at school. Her sister N was allowed to sign notes for other children. She said she gave her father school notices when she went to his shop. She said that N wanted her to attend school. She agreed that she had told the family reporter at interview that she liked school and wanted to be a history teacher. She said family life was normal and when her parents were together they argued but she never saw violence. She said her mother provoked her father. She said her father trusted the children and her mother hit them. She said her carer’s pension is her source of income. She said her mother was never aggressive. I do not believe this. There had been a period of time when she refused to see her mother.
She said she had helped at a shop for which she had never been paid. She said she had a good relationship with her father until separation, which she described this as a normal loving relationship. She said that she was not allowed to go anywhere but agreed this was not what she told the counsellor. She asserted her evidence was now truthful. She had not spoken to anyone as to what had been happening inside the courtroom. She recalled Z telling her about their mother throwing knives. She repeated she took responsibility for her mother’s medication and indicated that she was always there.
It was put to her that her mother raised her voice and she agreed. It was put to her that her father never used physical discipline and she said no. She spoke of O weighing her every night. She agreed this was not information that she had put in her affidavit nor told the counsellor. She agreed she didn’t tell anyone and she was aware that N said it had not occurred. When shown a document she agreed her friend had written it so that she could leave school because she was unwell. It was put to her that she had been suspended and she said not that time. Asked if she had been suspended on other occasions she said she had been but could not remember why. She said she had seen her father violent towards her mother.
She was asked if after she left her father’s home she commenced to care for her mother. She cooks, her mother helps when she is able. She said that she is there every night unless we go and stay at an aunty’s.
The husband went to Lebanon at which time she went to the shop. She said she was going to school after she went to live with her mother in September 2007.
She said that a report of her being observed in Sydney Suburb 5 Station swearing and smoking was false. I do not accept this. She agreed that on 20 September she was suspended from school for four days. Shown a report of an incident alleged to have occurred on 13 September she said it did not happen.
She agreed she had been a handful at school but said her father did not care. She added that she had done really badly at school. It was put to her that she ran away from home because she argued with N about school and she said this did not happen. She said her father had taken cash to Lebanon, $5,000 or $6,000.
She said on average there were 150 customers per day at the shop. She said the cost of stock per week was $39,000. Later she said the amount spent on special stock for sale in the shop was $18,000 approximately and when asked how much the husband had taken to Lebanon she said he had heaps of $50 dollar notes and had taken between $5,000 and $10,000. She said the husband had signed cheques for her and trusted her that’s why he left her in charge of the shop. She said her father had shown her reports and a receipt. She said he hid money in the sofa and she spoke of stock which she believed were duty free and illegally being sold.
In re-examination she said that she was under her father’s influence when she spoke with the counsellor and her father told her to make him look good. She said she was frightened of him. She spoke of being weighed every day from the beginning of High School until she left. She said she left her father’s home two years after her mother. She had not spoken to her mother. There had been text messages between them. She denied that she had left with a boyfriend. She said her father was abusing her, that he hit her, slapped her, kicked her. She agreed that this material was not in her affidavit. She said the day before she left her father had slapped her at the shop. He had told her that she was a disgrace.
She said she was in receipt of a Centrelink benefit before commencing to receive a carer’s pension. She said she worked nearly every day after school and on Sundays.
Again, I found the evidence of this witness at times hard to understand. It was evidence given in an attempt to support the wife in these proceedings. I found her allegations of abuse at the hands of her father somewhat difficult to accept particularly having regard to the fact that these matters have not been raised or referred to in her affidavits in this matter. Those affidavits were clearly filed to support her mother’s case, which makes the apparent admission the more puzzling.
The husband was then called. In cross examination he said that he is Muslim but not particularly religious. He attended the Mosque on special occasions. He confirmed that he had read and understood his affidavit. He said that he had difficulties with concentration.
He said his tax returns were completed by his accountant and they were accurate. However, he said that he had not read them. He said that he was on a disability benefit until after the wife left the former matrimonial home. He says that she was in control of all accounts. He said that he stopped his benefit because he no longer needed it and that he was honest at all times with Centrelink.
It was put that he controlled the finances. He said that was not true and that the wife did. It was put that she ran the business and he said that he did. He said he worked mostly seven days a week usually from just before 9 am to 5.30 pm, on Thursdays he worked late and on Sundays he worked from 10 am to 4 pm.
He said he had worked in other fields. He said to sell the shop’s stock was his idea at first but he had no idea of the profit margins. He then gave some evidence about various margins and said the margin was about 7 percent. He said the business has not always been profitable but has been for the last four years and gives him a respectable living.
He has seen reports from medicos about his head injury and is aware of loss of memory and some difficulties with his left side. He spoke of a land tax return.
He said that he had been assaulted but could not recall when. The wife handled the situation for the compensation claim. He thought that he received $20,000 - $25,000 which went into the purchase of the business. He said he was on unemployment when injured then on disability after he sustained the injury. He said his memory was poor between 1996 and 2002. He saw his doctor from time to time. Since 2002 he said he has not seen his doctor about his injury he decided that he had to heal.
He said he did the best he could, he ran the business seven days a week. He said he maintains books now. M did the banking two afternoons a week previously but now he does the banking. He said he saw a lot of specialists. He was told he could return to work.
He said he was prescribed antidepressants but did not take them. He did not tell the doctor this. He does not like taking tablets. He did not tell the doctor that. It was put to him that there was very little wrong with him as a result of the incident and he said this was not true, he just does not complain to his doctor.
It was put to him that he suffered no current problems with his head injury and he maintained that he still did.
He said that he had never read the whole of the wife’s affidavit, that he had made denials without knowing what allegations were made. He asserted that he read about 3 percent of the affidavit and that it took him many days. He had made an assumption as to where the affidavit was going. He said that he knew when he came to Court he would answer everything. He said his girlfriend wrote out his response in a café, that he was reading the wife’s affidavit and she was writing. He said this occurred firstly on one occasion and later on three occasions. He said he could not handle it. He said he had read his own affidavit but had rushed through it.
He said he gets a really bad headache when he looks up and down and cannot read for a long time. He agreed that he reads the newspapers every day.
He said N had worked in the business years ago. At that time the wife was doing the books. He asserted that the wife stole those books from the former matrimonial home.
He said that when he went to Lebanon he had taken AUD$3,000 which he converted into US dollars. There was no record of this. He said that he asked for money to be spent on about three occasions and on those occasions he received AUD$200 - $400. He said he went to Lebanon twice. On the second occasion it was for 3 - 4 weeks. His family in Lebanon had asked him to come back. He said that the trips cost almost a years income. It was put to the husband that he had told at least some of the children that he re-married in Malaysia and produced photographs. He said this was not so. It was put to him that he had a ninety-day visa for Malaysia and said that he was there for two hours.
He said the wife had purchased shares in her own name. He did not trade shares. They were in the wife’s name. Referred to a newspaper article, which became Exhibit 3 in the proceedings, he said that he had stated that the wife had bought the shares and we got burned. On a reading of the article no mention is made of the wife having purchased the shares.
He agreed there was a storeroom at the shop premises. He said Mr H did not do a stocktake but merely spoke to him, saying that Mr H didn’t ask so I didn’t show him the storeroom. He said that he had 50 parcels of stock at home. He said he never had cash at home. He denied that he had ever had cash hidden in furniture or the spa.
This of course is in complete contradiction to the evidence of his son.
He said he had given full and accurate information to his accountant but did not read the returns produced before signing them. He was asked about the manner in which tax returns dealt with stock particularly for the year ended 30 June 2008. He refused to answer any questions relating to the years 2007 and 2008 on the grounds that he might incriminate himself. He said that he told Mr H that he thought that stock was between $65,000 and $80,000. He said Mr H had asked what he wanted to know and he told him. He said that he had purchased the business for $60,000 plus stock and in the last week taken approximately $24,000. At Christmas he achieved $35,000. He asserted that at Easter he traded at a loss. It was put to him that he was turning over more than $1.2 million a year. He said that he earned $14,000 a year working seven days a week. He said that all monies he receives from the business go into the Commonwealth Bank which is his only account. Later he said he has a Westpac account. There is a line of credit with St George.
He had paid a bond of approximately $14,000 to the centre where he operates. He said that he had taken no steps to transfer the business to N.
It was put to him he contacted the franchisee to change the business to N’s name, and later to change it back. He did not agree.
He said he could not remember the last job he had before he acquired the shop. He said that before 1996 he was on and off Social Security and could not remember if he could save monies.
He said he built the current house a year or two after he was injured. He said he did not do any labouring or painting.
It was put to him that he had been unemployed since 1989 and he said he did not remember.
He then said that he had skills but the wife would not let him out of her sight. He asserted when he got home he was required to look after the children full time.
He said with the Commonwealth Bank of Australia there is a line of credit for the business account and cash receipts go into that account. He said that monies for card purchases went into an account in N’s name and were then drawn from that account when the balance reached somewhere between $8,000 and $10,000 and was transferred to his account. He said that he had never put money in other children’s accounts. This of course is in complete conflict with the evidence given by his son.
He said that he had worked for his father and then a warehouse but then he stopped work because he couldn’t trust the wife to take the children to kindergarten. He said that he attended Centrelink in about 1989. He said he thought they did alright and saved some money.
He said he had a one third interest in Sydney Suburb 1 and was bought out in 1986 and the parties moved to Queensland in 1990. He said he had left work in 1989 that they had purchased a property in Queensland for $50,000 which came from their savings. He said they had acquired savings of $30,000 in two years during which period he had earned up to $1400 a week for two and three months. In relation to the acquisition of a bank loan he said he did not recall what he had told the bank. He thought the loan was about $60,000 and the old home was demolished and a new house built at a cost of approximately $70,000. The Sydney Suburb 1 property cost $120,000. He said he would give leather lounges to his wife for an adjustment of $5,000. He said that N no longer helps him.
He said M had not been attending school, but was not helping in the shop.
He said that the Eftpos money is business money. He said that N had helped him with the mortgage. He said that N was not at home and had just started her own business. Asked if he drove a vehicle registered in N’s name he said the vehicle was in his name and he and his wife had swapped registration in respective vehicles. He said that at first the vehicle he now drives was first transferred to N’s name then to his. No satisfactory explanation was given for this.
He said he was living in a house with four bedrooms. He said that certain accounts (which I took to be rates and utilities) were in the wife’s name. He said he gave her money to pay these accounts. He again said he had never put money in children’s accounts. He agreed that he had heard O’s evidence. He said he had no knowledge of the accounts. He said that in 2005 N was an apprentice.
It was put to him that he had told the children their mother had left with a boyfriend and he denied this. He denied the wife’s allegation of violence. He said she slept in their bedroom throughout the marriage.
It was put to him that the wife from time to time had a black eye or eyes and he said this was untrue.
He said that M had left his household when she was caught out truanting and intercepting letters from the school. He said he would not tolerate this conduct.
He said he was not aware as to how N took responsibility and said that he was not aware what was happening. He said he had given N some authority to act in respect of M’s school. He said he was shocked when M left. He said that he did not insist M weigh herself every day. He said she was trying to overcome a difficulty with her weight.
He said there has never been a stocktake undertaken. He said that he had 50 parcels of stock at home and the wife took 30 when she left.
It was put to the husband that the wife had built up the gift lines within the shop and he said rubbish. He said that he had made several claims on insurance for break-ins.
He said that he never had a good relationship with his son O and that O was a mummy’s boy. It was put to him that the wife ran the house with the assistance of the girls and he said the girls ran the house. He denied his brother had asked he and the wife to work in his business. He did not know about his parents working in the brother’s business. It was then put to him that his parents and then he and his wife worked in the brother’s business which he said was incorrect.
He says he lives day by day. He said he did not know what N’s first job was. He says he gives the children respect. He said that N had time to look after M. He said he cooked and shopped most of the time. He said when his wife was in the home they shared cooking duties. It was put to him that he had not done these things and he maintained that he did. N would undertake the cleaning. It was put to him that the wife had mowed lawns and he said rubbish. He denied it was all left to the wife and children. He said that he had never hit the wife or the children.
He again said he could not read the wife’s affidavit over a period of months but he read what Ms J had written for him. He said he had dictated for three hours a day for five days. He said that she did read some of the affidavit to him and that if lawyers had read it to him, it would have cost too much. There was not time for Ms J to read all of the affidavit to him, and in any event, he could not concentrate. He said his memory has been affected since the assault in 1996. He said he does not think about things “I don’t put thoughts in my head”. It was suggested that he have a brain scan and he said he did not want to know the worst, he wishes however that his memory was better. He said that he had never discussed transferring the business to N. He gave N the car in her name because of a fear for his life which later dissipated and he then took the car back into his name. Asked if he made a phone call to the franchise holder to discuss the possibility of transferring the business, he said he may have done but he did not remember.
The next witness called was Dr S. He said that he was not a psychiatrist but he does treat psychiatric patients. He first saw the wife in 2005. She sometimes telephones and sometimes comes to the surgery. He has not seen her collapse. She has reported a collapse on a number of occasions in addition to the time in Court. He says her condition changed for the worst after:
a.Her children assaulted her; and
b.After appearing in court on the last occasion.
He said she has had to stay in hiding because she is fearful.
To the husband’s counsel doctor said that the wife had told him that she fell to the floor at Court. Asked if the wife had said she had not had medication with her, he said she did not tell me that. She said her medication is Afexor 150 and Zanex 0.5 mls. She has vitamin D supplements because of the effect of other medication. Doctor said Zanex may be addictive but she can take more in a case of a panic attack up to 4 mls a day. She is to take 5 mls or half a tablet four hourly. She is not to exceed that dosage and she is not to take the tablets one after the other.
He said Epillum was to augment the antidepressive medication and control anger. He said that he had told her she could take one more Epillum if troubled by anger but three was the maximum. He remembered discussing the wife’s needs with either the wife’s daughter or sister. When dizziness was mentioned he emphasised the correct use and dosage of medication.
Asked about his report mentioning physical abuse, doctor said she may have mentioned other complaints which he had not recorded but should have. He had seen and has a copy of O’s affidavit in his file but does not remember how it came to him. Asked if her medication regime would affect memory, he said that Zanex would. Asked if he knew about the wife’s attempt of self harm at 16 years of age, he said he would like to know more. Asked if a psychiatric condition existed before marriage, he said that would be relevant and if he knew this to be so he would follow it up. He was given no history before the parties’ marriage. He said he did not recall being told about the assault on the husband by the wife’s father and others. He said as the wife had come from a violent background it could be relevant.
He could not remember what was said about the suicide attempt. He had been told that the only money she got was by way of family allowance. He said that he could eliminate that the wife came into the marriage with a psychiatric condition. Asked about her Victims Compensation application, he asserted her injuries had lasted for over twenty years. Asked to assume that she had spent $22,000 in two months, he indicated that shopping spree would usually be a part of manic symptoms. Asked about monies taken and spent from the line of credit connected to the husband’s business, doctor said he would need to know why.
He said if the wife had a severe depressive illness it could have manifested in a number of ways. Asked to assume that he threw knives at one of the parties’ daughters in anger, he said that this was serious and should be investigated. He said the context was important. Reckless behaviour was indicative of manic behaviour or depressive behaviour and indicated poor impulse control. Doctor observed she had thinning hair which was consistent with her hair being pulled by some of the children. Doctor said that if the wife had made up her allegations or exaggerated them then this was clinically of concern and was either malingering or indicated a financial motivation. He had seen her after her collapse at Court and when they spoke about the property settlement application but not in detail. She had not told doctor about being convicted of an assault upon one of the children. Asked about the wife raising her voice, he said that this was inappropriate that he was not aware of the circumstances. However he would investigate as this may point to depression.
That concluded doctor’s evidence.
The wife then resumed cross examination to Ms Judge. The wife agreed that she had produced documents in respect to the Victims Compensation Tribunal but was not aware she had to produce documents for the motor vehicle accident. She thought she had received $24,500 it was her son’s car and she gave him the payout. She was shown a letter which indicated an amount of $35,000 was received. She said that she had more funds before the last Court date but she now had about $10,000 left. Shown documents from the Commonwealth Bank from November 2008 to January 2009 she agreed that the closing balances were both approximately $13,000 which indicated an amount of $22,000 was removed from the account between those dates.
She agreed she paid $2,900 rent up to the current time. There was some talk of her receiving Botox which she denied. She claimed for damages in respect of an accident arising out of a car driven by her daughter of some $3,500. She said she smokes a packet of cigarettes a day for about $80 per week.
In re-examination she gave some evidence concerning photographs. She said that the Toyota vehicle 1 had been transferred to her. She said in November she went to the home, her husband spat at her and abused her, but signed a transfer for the vehicle to be placed into her name.
Further, by leave to Ms Judge, she said the Toyota vehicle 1 was transferred before the Apprehended Violence Order. She had been contacting the husband often about the vehicle. Asked about sending him a text saying that she had a boyfriend and she wanted to live with him, she said that this was done in an attempt to obtain an Islamic divorce and that making such a statement may force his hand.
The Husband was then further cross examined by Ms Judge. The husband said his wife had told him that his brother had bashed her.
The husband’s father Mr O Elfar Senior was then called. He said that he was a Muslim who took his religious beliefs very seriously. He had performed the Haj. He said that there was no reason he had not sworn upon the Koran and he always tells the truth. He said that he saw the wife cooking, of course, at the house. He said he did not know if he saw her looking after her children. He said that when he visited his son and saw the wife doing housework up to the time of separation he did not feel that anything was wrong. He did not see her play with the children. He said they had not worked in a hospitality business that he owned but they worked in a shop with him when they relocated from Brisbane. He said that the family had lived with he and his wife at their home. N was a baby and the wife was pregnant. Asked why he was here at Court he said it was to testify to things that he knew. He said he had a headache and it was hard to remember. However, he remembered Mr K’s shop. He never saw his son hit his wife. He never saw Mr K hit the wife. He had however heard that Mr K had hit her. It was put to him that Mr K had been in gaol twice. He said he did not remember and only recalled one occasion and we helped him. It was put that the husband and wife had worked in Mr K’s shop to assist him and he said he did not know, he was not sure.
When the matter resumed it was made clear that the report of Dr B was not to form part of the evidence before me.
The next witness called was Z. She said she had attended three primary schools. At Sydney Suburbs 6, 5 and 1. In respect to the last two schools she said that her father drove her in years 3 and 4 or walked with the children to school. At High School she said her father or his parents drove at first and then she attended under her own steam. She said her mother started driving while she was in year 10. She never travelled in the Toyota vehicle 1. She did ask her mother to drive her three or four times a month and she would say “Am I your slave?”
She could recall when her father had been assaulted. She believed she was about seven at the time. She said she spent time with her father and he always played with us children. She said her father’s parents looked after us a lot. She said her father gets some of the children or one of the children to write for him. She said at her father’s request she wrote a letter for her sister to hand in at school.
She said her father reads with difficulty. She said she did the HSC in 2005 and thereafter studied with the open university. She said her mother didn’t wish her to undertake debating as her mother believed it would make her argumentative. She said that she had to hide to read books and by that I took it to mean hide from her mother. She said she was able to read in front of her father. She said she has an Apprehended Violence Order against her mother who came to the house, hit her sister M and then hit me (Z). The hit was an open hand to the head and arm.
To Mr Rich she said she was 21 years of age and has a reasonable memory of what occurred when she was seven. Her father took her to primary school every day and she said at High School her father left for work before we left for school.
Asked why she kept asking her mother to drive if her mother refused, she said she hoped her mother would eventually agree.
Before the Toyota vehicle 1 her mother had a small white car she thought a Holden. She said when her father was in hospital her mother drove the children. She said she was close to her father and had no relationship with her mother. She did not consider that she had a mother.
She said she is financially independent. She was bankrupt, she told the Court, in respect of a car loan for $50,000. She said she had never seen her father read anything since she was 10. He had not asked her to help with books for the business and she does not know how the paperwork for the business is done. She said she helped out every now and then but did not know what records were kept. She did not do reconciliations, she did not bank and she did not know who did the banking. When she has worked the takings have been mainly in cash. She said her mother was sometimes involved in activities with the children but rarely.
It was put that her mother never discouraged her reading to which the witness replied that was untrue, she was yelled at by her mother for reading. It was put that her father had discussed her evidence and she said no. She was working. She was not close to M and O. She had not wanted to give evidence. She had read the affidavits of her mother and wanted to be involved because of what she read.
She said law is an interest for her. She said that there was never any violence by the husband to the wife, she knew the allegations to not be true and that was why she was giving evidence. She said she had never seen any violence in the home. She said she was a good debater. She said she first saw her mother drive when her father was in hospital and she started asking her mother to drive her in year 8 or 9.
N then gave evidence. She spoke of an episode at Macdonalds involving O. She did not know what happened in respect of the court proceedings involving her mother and the wife of the then landlord. After her father was admitted to hospital her mother drove to the husband’s uncle’s home. She said that after her father was hospitalised her father’s parents cared for the children. She said she went to the hospital. When she asked her mother to take her to the hospital, her mother said that her father did not want the children to see him.
She said that when her mother left she took on the role of mother for the younger children. She went to the school about her sister M and spoke to M about her difficulties at school. She could not answer if Ms I had been charged with any offence.
In cross examination she said that she was close to her father and had a good relationship with him. She had not discussed the case with him. She said she had been asked to give evidence by her father’s lawyer and felt it was her duty to come forward. She had read about half of her mother’s affidavit. She said she had discussed what she read with Z.
She said that she knows her mother is not a nurturing mother. She wanted to ensure that her younger sisters had a roof over their heads. She described her sister Z as a jet setter who had been overseas perhaps since she had been made bankrupt.
She said that she had left school at 16 and commenced work. She was paid an award wage when she worked. She had completed a Certificate 3 course and she left work when the wife left for a few months. She received no income, just pocket money. She had set up a business in late 2008.
She agreed that the merchant facility for Eftpos was in her name but all the monies going into that account were her father’s. She identified an account …28 with the Commonwealth Bank as her personal account. She said they had an account …08 with that same bank that was also her account. She said she has two Eftpos accounts one hers, one for her father.
She was then taken through a number of transactions she said that an account …92 with the Commonwealth Bank had been opened on 9 April 2003 with a deposit of $1,500 and was closed with an amount of approximately $49,000 withdrawn. It appears an amount of $48,500 was then used to open an account which by 1 April 2004 had increased to $55,000. By 1 May 2004 it was $65,000 and by 1 June $71,000. By 1 July it was up to $80,132 and was closed on 7 February 2005. She asserted that these monies were her savings. She said that she had no income as such from her business but insisted that she was given gifts by her friends of up to $300 per week for services. She insisted this amount was not income.
Next witness called was Mr H who was the single valuer in respect of the business. He said a good portion of the material that he relied upon was supplied by the husband. He said he looked at the cash register receipts for one week. No allowance was made for sales by Eftpos. As to stock value the husband indicated a figure of between $60,000 and $80,000. He said profitability was related to total sales, and if there had been more sales than he was aware of he conceded he had undervalued the business. His valuation was based mainly on purchases allowing a gross profit margin. A figure of $1,160,971 was a figure from the tax return as disclosed to him, and there was no independent verification by him of this figure. Asked if he had been told about a bond to the centre management he said no. He said it was necessary to add the bond and stock figure to arrive at the value. There was little plant and equipment. Any difference in stock held would be represented by sales. He did not see the lease and did not know details of any immediate competition.
To the husband’s counsel he said he had no letter of instruction, he was not given earlier instructions. He believed valuing meant arriving at a figure that the business could be sold for. If there were no option for renewal he was not aware of the consequences. He said if there was an increase in excise and it were passed on there would be no effect. He said that he was pressured and did not ask for documents over three years. He should have requested these things before he undertook the valuation. The husband had handed to him documents and said I have the invoices.
The next witness called was Mr W in respect of the value of the Sydney Suburb 1 property. I did not need deal with his evidence as the parties reached agreement as to the value of the property during submissions.
Subsequently N was recalled and indicated that she was now familiar with the accounts that she had been asked about. She said that two accounts had been identified as personal accounts and the withdrawals were for personal expenditures. She said in respect of account …28 with the Commonwealth Bank she placed her wages in that account. Account …50 had a lump sum to open the account from savings with a deposit of $48,500. She then made references to other accounts including a missing account that had savings in it. In respect of account …26 from which there had been significant withdrawals of up to $10,000 she said these were kept in cash at the house. She said she would save up to $25,000 at home and then open an account. Again she said she made withdrawals and kept cash at home. The witness asked for and obtained a certificate. She said that the account were all monies from savings held at home. She again repeated that she did not receive an income but stated that she had received $400 per week for services. She would not answer where a sum of $7,000 had come from.
To my mind this evidence of the witness did her even more harm than the first stanza of her evidence. I am satisfied that she was an untruthful witness and a witness who would say anything to avoid any concession that monies in her accounts had come in any way from her father.
The matter was again adjourned and when resumed for the last stanza of hearing I heard evidence from N again and then the husband. N’s evidence was again to deal with the accounts in her name. In cross examination she said that she had forgotten some of the accounts when she first gave evidence, however, all deposits were her money. She agreed that if she were not correct in her assertions that she may in fact be guilty of perjury. She said she received gifts from family (not friends as she appears to have earlier asserted) of $300 - $400 a week but this was not income. She said she knew nothing of suggestions that the business might be transferred to her. She could not recall a vehicle being transferred to her and then transferring it on to her father.
She said she could recall that care by her parents was shared between them. Both cooked and shopped. She cannot recall when this ended. She asserted her father assisted with cleaning.
She agreed she said at first there were two accounts then a third. She then said that she cannot remember how many accounts. In respect of the account …92 she said at the time that she operated that account she was 19 and the monies came from her wages. She then said she closed that account and brought across the money received in small amounts. She did not know why she had monies from other accounts at home.
She said that the monies that went into account …92 came from closing one or more accounts. She said that $31,000 as at 18 July was her account and by implication her money, of which $5,000 was money she had saved. She then conceded that as at December 2003 she had another job but prior to that she had only worked as an apprentice. She could not remember where the amounts of $6,000 and $7,000 had come from.
She then agreed she closed account number …92 with a withdrawal of $48,500 and opened account …50. She said this was done to obtain a higher rate of interest. She deposited $6,000 and $3,000 from her savings. Indeed she again reinforced that all payments were from her savings. It was put her that these monies were from her father which she denied. She was then taken at length through a series of transactions. It was put to her that up to an amount of $90,418 had been in her account and withdrawals were made from that account on 2 March. She could not recall the reason but thought it may have had to do with buying a car. She could not provide any further accurate information. It was put fairly and squarely to her that $4,650 was her father’s money which she denied. She said that in 2006 she had a job full time. She arranged for her pay and commissions to go into her bank account. She could not remember where bank transfers came from and she could not remember where withdrawals from accounts went if not to other accounts. Asked where $80,000 went she could not remember. Asked again about the $80,000 withdrawal she could not remember where it went. I do not propose to set out the balance of the transactions or the evidence of this witness about those transactions. Suffice it to say that I am satisfied that this witness is not a witness of truth and her answers indicate to me that monies that she could not possibly have earned, or be given came into her possession.
In re-examination she spoke of having a part time job at school and not paying board. She had worked at a supermarket after leaving school. She had no car, no phone. She did not pay board until her mother left the home. She was not aware if her parents had drawn Social Security. She said her mother had borrowed from her from time to time.
She could not remember if she had a deposit book. She said she had lent her parents $20,000 to buy the business. She said she had contacted the Australian Taxation Office to deal with her taxation issues. She said that she had a business which she wanted to protect. She said that she had paid all the set up costs of her business which was between $45,000 and $50,000. She spoke of the purchase of a car and taking her sister on a holiday. She was recalled and gave evidence that she produced some documents in respect of taxation while the other documents were with her accountant, who was closed.
Asked about what years she had gone to see the Australian Taxation Office, she said she had told her accountant that she wanted to clear her income from 2004 to 2006. She said she could not give a figure for income. She had been an apprentice during the period of 1 July 2003 to 30 June 2004. Her income was approximately $11,000 - $12,500. She said she cannot understand where the figures of income come from. She said she had made a disclosure to the accountant to fix her undeclared income. She said deposits in her accounts in excess of her declared income came from other sources. She continued to assert that they came from her savings.
The husband was then recalled he said it was 100 percent false to suggest that his daughter had any of his money. He said he had sold stock at a loss. He said that whilst the tax return showed stock at $120,000 he had seen a figure of $76,000 and taken that to represent the stock. He said that he wants to keep the home at $780,000 and will try to borrow to enable this to be achieved. That then appears to be the totality of the evidence before me.
It is clear that the wife removed monies from the Veridan account at the time of separation. There is no doubt that the amount so removed is in the agreed sum of $39,548. It is the husband’s contention that this amount should be added back notionally to the pool of assets available for distribution pursuant to the authority of cases such as Townsend[1], Farnell[2] and Chorn & Hopkins[3]. The wife’s response is that the amount ought not be clawed back in any fashion. It is her case that following the separation of the parties the husband has paid no maintenance or support for the wife and has kept for himself the proceeds of the business.
[1] (1995) FLC 92-569.
[2] (1996) FLC 92-681.
[3] (2004) FLC 93-204.
Therefore counsel asserts that the amount the wife took she has had to expend on every day living expenses for herself and at times some of the children.
The wife other than her assertions as to the use and disposal of the money has provided no detailed information as to how it was dealt with or expended. Put simply there is no proper accounting for the wife’s dealing with this amount.
In Omacini[4] their Honours identified three clear cases of categories where the Court has determined it is appropriate to notionally add back to the pool of assets. The second of those categories identified was where there has been a premature distribution of matrimonial assets. I am satisfied that the amount taken from the Veridian account was indeed an amount that came from what could only be considered as matrimonial funds or borrowings. Certainly the amount the wife withdrew had the additional result of extending to its limit, or very close to its limit the Veridian line of credit.
[4] (2005) FLC 93-218.
The amount involved is clearly ascertainable. I propose to add it back to the pool of assets. However, I propose to deal with the matters of the wife’s living expenses post separation when I come to consider the issues of the parties’ contributions.
The wife, I am satisfied, clearly received an insurance payout in respect of a motor vehicle.
Doing the best I can, that insurance policy netted to her the sum of $24,500. The evidence regarding this claim and the vehicle involved is to my mind wholly unsatisfactory. There was a suggestion raised that the car belonged to the parties’ son and that he was the ultimate beneficiary of the insurance payout. I do not accept this. I am satisfied that the wife’s evidence in this regard was designed to conceal the truth. I am satisfied that the wife received the benefit of the insurance payout and used these monies for her own purposes in some fashion. However, I am not able to say that these funds were matrimonial funds arising from the wife dealing with an asset of the parties. Accordingly, I am not satisfied that I can properly add this amount back but it is something that I will take into account later in these reasons for judgment.
It is clear that both parties received awards by way of victims injuries compensation. The wife received an amount of $35,000 or thereabouts in approximately August 2008.
The husband contends this amount should be taken into account either as an asset of the parties or alternately a resource in the hands of the wife. The wife’s case is that the amount so received by her should not be taken into account in any fashion whatsoever in determining the assets or resources of the parties.
I am of the view that it would be unjust to treat the award as an item to be included as an asset. I am satisfied that an award for Criminal Injuries Compensation is not in the same category as compensation for injuries received in a motor vehicle accident. Clearly Motor Vehicle Accident Injuries Compensation may be taken into account. However, to allow the Criminal Injuries Compensation to be included in some way would be to reward the husband’s own wrong doing. Clearly the award the wife received was in respect to injuries she sustained at the hands of the husband. To include the award in the pool and finding in whatever fashion the husband was entitled to receive or be credited with any portion of that award would be unjust and repugnant.
The husband as I have said also received a victims compensation payout. No similar submission was made as to inclusion of that as an asset to be added back. Neither party’s victims compensation award will therefore be treated as an asset. Nor will I treat the amounts so received by either of the parties as resources in this matter.
The pool of assets thus appears to be as follows:
Former matrimonial home $780,000.00
Contents presently in the former matrimonial
home $5,000.00
Husband’s business goodwill $75,000.00
Stock value $132,694.00
The husband’s rental bond $19,050.00
Toyota vehicle 2 in husband’s possession $9,000.00
Husband’s bank accounts $3,100.00
Monies received by the wife at separation $39,548.00
Toyota vehicle 1in wife’s possession $5,000.00
Wife’s present household contents $1,000.00
Total $1,069,392.00
It is clear from the pool that I have produced that I have not endeavoured to add back any amount representing the monies that the husband placed in the accounts of either O or N and of which I have found he had the benefit. It may be possible by endeavouring to add together the amounts that appear to have been deposited to those various accounts to arrive at a figure which could then be inserted. In the circumstances of this case, I do not believe that I am in a position to carry out any precise mathematical calculations that would enable me to do this. Whilst I am aware it has been said to be preferable to, if at all, add back sums specific as assets to the pool of assets I am unable to do that in this case. However, I will deal with these amounts later in these reasons for judgment.
So far as the issues of costs is concerned, I do not propose to include costs either paid or endeavour to deal with costs unpaid and outstanding in respect of the matter. Each party will deal with their own costs following my judgment as best they can.
Liabilities
Home loan mortgage of the parties secured over the former matrimonial home is agreed in a figure of $129,982.17 which I will round down to $129,982.
The husband also made claim for a taxation debt in an estimated amount of $12,000. I do not consider this is an appropriate debt to be taken into account in ascertaining the pool of assets. The wife has received no benefit from the business post separation. The taxation debt must have been incurred since separation. Accordingly I do not propose to include it in the pool.
I do not propose to endeavour to bring the costs of either party to account in the liabilities of either of the parties.
The nett assets of the parties available for distribution are as follows:
$1,069,392.00 –
$129,982.00
Nett value of assets $939,410.00
I am satisfied that neither party has any resource which need be included or taken into account.
CONTRIBUTION
I turn then to the contribution of the parties to the asset pool that I have established.
This was a long marriage. The parties during the course of that marriage had six children. I am satisfied that the care of these children must have presented a very significant task for the parties. Each of the parties asserts that they did more than the other in the care of the children. I am satisfied that within the household each of the parties undertook tasks and in the later stage of the marriage with the assistance of the older children. It is impossible to be precise as to what each party did. However, on the evidence before me, I am satisfied that the wife did the majority of the cooking for the family, and that she shopped for the family. I am satisfied, however, that the husband, with the assistance of the older children in the later stages of the marriage, was responsible for the bulk of the cleaning. The husband I am satisfied was more involved with the children’s schooling and educational attainments than was the wife. I am satisfied that he spent time with the children and was more encouraging than was the wife of their achievements.
I am satisfied that since separation the children have to some extent moved between the parties. However, I am equally satisfied that most of the children were with the husband at any given time. I am satisfied that following separation the wife had considerably less to do with the children, particularly the younger children, than did the husband. The husband thus had the care of a greater number of the children, particularly the younger children, than did the wife.
I am satisfied that the husband made a contribution to the parties’ assets by virtue of the properties that were acquired during the marriage. I am satisfied that the husband, with his mother, purchased a property. The parties lived in that property for a time with other members of the husband’s family. I am satisfied that the husband did some work in and around that property. I am unable to be specific as to the improvements he carried out. I am satisfied however that he must receive some small recognition in this regard. I am satisfied that the wife also was involved in the up keep of that property.
I am satisfied subsequently the husband’s parents purchased his share in the property. Thereafter the parties moved to Queensland where a home was purchased. The purchase price was $50,000 and I assume that monies received by the husband from his parents (approximately $13,000) were contributed to that property. The parties both seem to assert that the balance of purchase monies came from joint savings.
I am satisfied that once again the husband carried out some work on this property. I am satisfied that whilst in Queensland the husband worked a number of jobs.
The Queensland property was sold in 1992 for $75,000. The parties returned to the Sydney area and lived in Sydney Suburb 3. I am satisfied they purchased a property for approximately $100,000 applying the proceeds of sale of the Queensland property and some further savings.
As I have already referred to there is the evidence of both parties that they accumulated savings during the marriage. On the figures that the parties appear to assert were their incomes during those periods the level of savings was extraordinarily high in relation to the amounts earned, having regard to what would be the expenditures required for a rapidly increasing family.
I am satisfied that monies were borrowed and the existing dwelling was demolished and a fresh dwelling constructed. I am again satisfied that the husband took a part in the work that was carried out.
That property was subsequently sold netting approximately $200,000. A property was then purchased at M Street, Sydney Suburb 1 which became the matrimonial home. That property was purchased for some $168,000. Thereafter, work was carried out to demolish an existing dwelling and rebuilt a home on that property. Again, I am satisfied that the husband took an active part, but not to the extent claimed by him, in those work activities.
I am satisfied that the wife during periods of employment utilised her income for the benefit of the family.
I am satisfied that initially the husband applied his income for the benefit of the family. However, I am also satisfied that for a period of time the husband either deposited money into his children’s accounts or placed monies in secret locations in and around the home. I am unable to say what the husband did with these monies. However, on the material I have before me, I am satisfied that these funds, that is the funds held by his children or in hiding places, were not monies used for the benefit of the family.
I am satisfied that when the husband travelled to Lebanon, on two occasions, he used monies he had placed in hiding or with one or other of O or N. I am satisfied that he had monies sent to him as he required. Again, I am unable to be precise in the figures with which I am dealing.
There was an issue to which I have already referred, in relation to shares. It is the wife’s allegation that the husband bought shares which he placed in her name and the value of which was entirely lost. I do not accept this. I accept there were some monies paid to acquire OneTel shares which, because of the collapse of that enterprise, became effectively worthless. I do not propose to take that issue into account in determining the contributions of the parties.
There are allegations made as to the husband gambling. Again there is a lack of precision in this material that enables me to make any concluded or mathematically specific finding in this regard.
I am satisfied that following separation the wife received no monies by way of support or otherwise from the husband. The wife clearly took and used the sum of $39,548 from the Veridian account which she applied to her own needs. I am satisfied that during the post separation period the husband had at least most of the children with him at any given time. During this period the husband had occupation of the former matrimonial home to the exclusion of the wife. It is the case that neither party paid any form of child support, formal or informal, to the other for the care of any of the children at any time.
I am satisfied that the husband has maintained the retail business. He has had the benefit of that business since the parties separated, to the exclusion of the wife.
I do accept that the wife gave some little assistance at the time of acquisition of the business. However, I am satisfied that the monies the business produced have been enjoyed by the husband to the total exclusion of the wife.
On the evidence before me, it is that business which has produced not only the amounts of money that the husband has chosen to disclose but also the monies which I am satisfied he has dealt with by means of secreting it or putting it through his children’s bank accounts in a manner I have dealt with in these reasons for judgment. It is clear from time to time that the husband has had the assistance of a number of the children in the operation of the business.
The wife asserts that there should be a further adjustment in her favour by virtue of the husband’s physical abuse of her, pursuant to the decision of the Full Court in Kennon & Kennon[5].
[5] (1997) FLC 92-757.
The wife appears to assert that the husband’s treatment of her made the performance of her household tasks and functions extremely difficult. As I have said, I have real difficulty in this matter in accepting the evidence of either party. In this instance, and in an effort to ascertain where the truth lies, I must have regard to the fact that the wife obtained a Victims Compensation award because of the husband’s conduct towards her. She has already received an amount of money which I do not propose to take into account as part of the asset pool for the reasons I have already set out in this judgment. The husband denies any physical mistreatment of the wife. On the evidence before me, I have come to the conclusion that the husband was violent towards the wife, although precise particulars are impossible to ascertain.
I have found that the wife was not the person carrying out the whole of the domestic duties and tasks in the household. I have found that she was not the major care giver to the parties’ ever expanding family. However I am not satisfied on the evidence that the sole reason that the wife did not perform all the functions and duties that may have been expected of her was, directly and solely related to any violence or abuse occasioned to her by the husband. I am satisfied that the wife’s situation was largely of her own choosing. However I am left with the view that to an extent, albeit limited, the husband’s actions did have an effect upon the wife. Notwithstanding her receipt of a Victims Compensation award, I am of the view that a small adjustment is required in the wife’s favour.
The contributions of these parties were made over the course of a long marriage, and subsequently. The contributions themselves differ in nature and occurred or fell in at different times during the parties’ relationship. Whilst it seems to me that the parties’ contributions are close to equal, the factors I have identified require an adjustment in the wife’s favour. I am satisfied that an appropriate adjustment is 4 percent. This of course does not mean that the wife receives 54 percent of the assets based on contribution. I propose to allow a differential of 4 percent between the parties meaning that she would receive 52 percent of the pool of assets and the husband would receive 48 percent of that pool, based on the matters of contribution to which I have made reference.
SECTION 75(2) FACTORS
The parties are aged 48 (husband) and rising 45 (wife) respectively. Both are in less than good health. Whilst I am not satisfied the husband’s memory is affected to the extent he would have me believe, I am satisfied that his health has been affected to a degree by the assault upon him. I am satisfied that the wife’s health is not particularly good and her health combined with her age would indicate that she has little prospect of returning to full or part time employment.
I am satisfied that the husband has for the future a source of income from the business which he continues to run. I am satisfied that the real income that the husband receives from the business is greater to a significant degree than the amount the husband asserts and declares to authorities. I am satisfied that the husband has been over the years able to accumulate significant amounts and I am satisfied that he has the ability to do so in the future.
I am satisfied that the husband continues to have responsibility for the youngest child of the marriage. Clearly that will not be the case for very much longer.
I understand that the husband has remarried, although no great information is provided to me in this regard. I am not aware of the financial arrangements that exist in that marriage. I am not able to say whether the husband has any liability to support his present wife. I am not satisfied that any adjustment, on the evidence before me, is required in this respect.
The wife has pension entitlements which on the evidence I have before me will continue into the foreseeable future.
I am satisfied that throughout their marriage the parties lived frugally as a family.
I am not satisfied under subsection (k) that the duration of the marriage has to any extent affected the earning capacity of either party to this marriage.
I have already indicated pursuant to the contribution based element that I propose that the wife would receive some 4 percent more than the husband by way of distribution of the pool of assets.
There are then a number of further matters that I need to consider.
It has been put to me that under cases such as Weir & Weir[6] and Black & Kelner[7] I should act on the basis that the husband has not made a full disclosure in connection with monies that I have found he has either hidden or channelled through the bank accounts of two of his children. I am satisfied that neither party has been fully frank with me. I am satisfied that the husband has been, as it were, the worst offender in this respect. I am satisfied that the amounts involved on his part are greater than the amounts the wife dealt with.
[6] (1993) FLC 92-338.
[7] (1992) FLC 92-287.
His non-disclosures concern significant amounts of money which he sought to hide from the wife, the Court and it would appear on all the evidence, taxation authorities. The effect of this is that in the words of the Full Court in Weir & Weir “once it has been established that there has been a deliberate non disclosure the Court should not be unduly cautious about making findings in favour of the innocent party”[8].
[8] Op cit at 79,593.
I again indicate that I am satisfied that both parties have chosen not to disclose their financial positions with truth and accuracy, with the husband, as I have said, the more serious offender in this regard.
I am concerned that the wife used for herself the insurance monies which I am satisfied she obtained. She has not given a satisfactory explanation of how these were used, and indeed sought, as I understood her evidence, to say that the monies in any event were not hers but her son’s. I do not believe this and I am satisfied that the wife has chosen to endeavour to conceal her use of these monies from the Court.
It therefore seems to me that I need not be especially cautious in dealing with the conduct and behaviour of either party as it may affect the other.
Accordingly, I am satisfied that the husband’s dealing with the monies as I have described, that is through his children’s accounts and by concealment in and around the matrimonial home, is of real significance in this matter. I am satisfied that the conduct of the husband is far more deserving of censure than that of the wife. I am satisfied that the amounts involved are significantly more than the amount of $24,500 that I have attributed to the wife.
By dealing with the monies in the manner that he has the husband has sought to remove them from inclusion or prevent them being included in the pool of assets. If they had been held in a proper fashion as savings or other funds of the parties, in a manner where they could have been identified, they would have been able to be quantified. Had that been the case there could have been proper argument as to the amounts involved and the manner in which they were to be dealt with. Because of the uncertainty, created by the husband’s own actions, I am satisfied that a significant adjustment needs be made in the wife’s favour in this regard.
The husband has the continued income from his business. I am satisfied that he will continue to deal with monies from that business entirely to his own satisfaction and with disregard for any of his obligations to make disclosure to revenue authorities.
Having regard to their Honours decision of Tomesetti[9] I am satisfied that I am required to weigh together all of the 75(2) factors without endeavouring to apportion to all or any of them a specific percentage.
[9] (2000) FLC 93-023.
In the circumstances of this matter I am satisfied that the adjustment required is 12 percent. In money terms that is a figure of $112,730. This is a sum of money not to be ignored.
The wife is to receive by way of contribution 52 percent and by way of further adjustment 12 percent, for a total of 64 percent. This will mean that the husband is to receive 36 percent of the assets as I have determined them to be.
During submissions it was put to me, on behalf of each of the parties, that they, that is the husband and the wife, should have the opportunity to purchase the property from the other by payment of a sum of money. Each puts to me that they ought have the first opportunity to purchase, each apparently conceding thereafter the other party could have a right to acquire the property with a sale of the property being the last option.
In the face of competing claims to acquire the property it would, I concede, be simple and straight forward in all the circumstances to order that the property be sold and the proceeds be divided.
This is something of a balancing exercise. The husband however has been in possession and now says he wishes to remain in possession. Whilst accepting the wife is now saying she wants to return to the property I have some doubts this is for any reason other than to make the husband’s life as difficult as possible.
However, I am of the view that this is the major asset of these parties. I am satisfied that in all the circumstances it would be of assistance to both parties to proceed without the requirement for the property to be sold to a third party if that can be avoided. This would at least minimise the legal fees and disbursements involved. The question then is who should be given as it were the first opportunity to acquire the property. The husband has remained in possession. This to my mind is a significant feature. The wife as I have said asserts that she has a capacity to borrow but the husband has not demonstrated. However, I am minded that in the circumstances of this case the husband ought be given the first opportunity to purchase. However, I propose to give him a limited time in which to do this. If he is not able to acquire the property for the sum I determine appropriate then the wife is thereafter to have a further short period of time in which to acquire the property upon payment of the sum that I determine appropriate to the husband.
If neither party can acquire the property then I will order its sale and, upon sale, division of the proceeds of that sale in the appropriate proportions.
Accordingly, I am satisfied that the husband should have an opportunity to acquire the property within two months of the date of these orders. It will be a condition of him acquiring the property that not only will he pay the wife the amounts I will determine shortly, but that he would arrange to have her removed as a mortgagor from the time of transfer. In other words, he will be required to discharge the existing mortgage which involves the wife or in some way have her removed therefrom. It will not be sufficient for him to indemnify the wife in the circumstances of this case.
It is the wife’s case that she should have the first opportunity to purchase. She says that she now has funds, by way of borrowings, that would enable her to acquire the husband’s interests. As will emerge from the figures the amount she would require, to acquire the husband’s interest, is substantially less than the husband would be required to pay her to acquire her interest.
So far as the wife is concerned I would propose then to give her another or further two months in which to acquire the husband’s interest. That would of course be a period of two months commencing at the expiration of the two months that the husband has in an endeavour to purchase the property.
Thus if the property is not acquired by either party a sale will be required and I will make orders to that effect, and provide for the manner in which the proceeds of sale, when received, are to be divided.
I propose to order that the contents of the home will go to the party able to secure the property. In the event that neither party can effect a purchase of the interest of the other then the contents are to be sold. I propose to order that thereafter, each party retain as their own property to the exclusion of the other, all monies, real property, motor vehicles, investments and chattels in the possession or control of that party.
THE END RESULT
There are thus three possible scenarios. Scenario one is for the husband to acquire the wife’s interest in the property and contents.
Scenario two is for the wife to acquire the husband’s interest in the property and the contents.
Scenario three is for the property to be sold to a third party and the proceeds divided between the parties, with a right to the parties in order to have the opportunity to acquire the contents of the property and if this cannot be done I will provide for the sale of those contents and a subsequent division of the proceeds of that sale.
As I have already indicated the nett pool of assets available for distribution is $939,410. I have come to the conclusion, as set out earlier in these reasons, that the wife is entitled to receive 64 percent of that pool and the husband 36 percent.
The wife’s entitlement calculated on a percentage basis is therefore $601,222.40. When I take from this amount the monies and items already attributed to the wife which are:
· money from the Veridian loan account $39,548.00
· motor vehicle $5,000.00
· present contents $1,000.00
Subtotal $45,548.00
Thus when that amount is taken from her percentage based entitlement the following figures are produced: $601,222.40
·Less items in wife’s possession $45,548.00
Nett entitlement $555,674.04
The husband’s percentage based entitlement is $338,187.60. He already has in his possession:
· business goodwill $75,000.00
· business stock $132,694.00
· bond $19,050.00
· motor vehicle $9,000.00
· bank accounts $3,100.00
Subtotal $238,844.00
Which when taken from his percentage based entitlement produces this result:
$338,187.60
·Less items in husband’s possession $238,844.00
Nett entitlement $99,343.60
Thus where the husband is to acquire the wife’s interest the figures are these. The husband will need to satisfy the wife’s net entitlement of $555,674.40. If the husband pays this amount to the wife (and I will round the amount to $555,675) then the situation is this; the husband will acquire the property and its contents and have:
· Property and contents $785,000.00
· Plus his items $238,844.00
Total $1,023,844.00
The husband would then have liability for the mortgage and payment to the wife of the sum to which she is entitled. Therefore the figures are these:
$1,023,844.00
· Less mortgage $129,982.00
Subtotal $893,862.00
·Less Wife’s entitlement $555,674.40
Balance $338,187.60
This is the amount represented by the husband’s percentage entitlement.
In that situation the wife would then receive:
$555,674.40
·Plus her motor vehicle $5,000.00
·Plus money she took at separation $39,548.00
·Plus her own contents $1,000.00
Total $601,222.40
This is the wife’s percentage entitlement.
Scenario two is where the wife purchases the husband’s interest in the property. She is required to pay him his net entitlement of $99,343.60. The husband in that situation then has that entitlement plus items attributed to him. The figures then are these:
$99,343.60
·Plus items in husband’s possession $238,844.00
Total $338,187.60
This is the husband’s percentage based entitlement.
In this situation the wife’s position is as follows:
· she has the home and contents $785,000.00
· plus the items attributed to her $45,548.00
Total $830,548.00
She has to be responsible for the mortgage and she has to pay the husband his entitlement.
The figures produced are these:
· she has the home and contents $785,000.00
· plus the items attributed to her $45,548.00
Total $830,548.00
·Less mortgage $129,982.00
Subtotal $700,566.00
·Less husband’s entitlement $99,343.60
Balance $601,222.40
This is the amount of her percentage based entitlement.
The third scenario I must consider is a sale to a third party. In such a case the property would be sold for $780,000 and the mortgage would need be satisfied from that sale price. The figures then are these:
Property $780,000.00
Less mortgage $129,982.00
Nett Balance $650,018.00
In this situation I have not included the contents of the property and I will deal with those shortly.
If the wife is to receive her net entitlement this must be expressed as a percentage of the net amount arrived by deducting the mortgage from the sale price. Thus $555,674 is to be expressed as a percentage of $650,018 the figure thus produced is 85 percent.
The husband’s nett entitlement is $99,340.60. The calculation establishes that this figure represents a rounded percentage of 15 percent of the net sale figure. I would then order that upon settlement of any sale the proceeds be divided in those proportions.
The parties therefore, if a sale to a third party were to occur, would have those figures plus the respective entitlements I have assigned to them. In the wife’s case this is the amount of $45,548 and in the husband’s case the figure of $238,844.
I have decided that in the event that the real property must be sold the husband should have the first option to acquire the contents of the property for the figure of $5,000. In the event of a sale the wife is to receive a vastly greater sum of money than is the husband. In those circumstances the husband is to be preferred over the wife so far as the contents are concerned. He will be required to notify the wife of his intention to acquire the contents within seven (7) days of contracts for sale being exchanged. I will order that payment for those items be made no later than three (3) days prior to the date tentatively fixed for settlement, and the items shall be collected from the former matrimonial home by no later than midday on the day before the day fixed for settlement.
If the husband fails to give notice within the time specified then the wife shall have a period of seven (7) days from the expiration of that time to give notice of her intention to acquire the contents. If she gives that notice then payment will be made no later than three (3) days prior to the date tentatively fixed for settlement and the items shall be collected from the former matrimonial home no later than midday on the day before the day fixed for settlement.
If neither gives notice within the times specified then the parties shall arrange a sale of the contents and I will order all parties to do all things required to achieve a sale. Upon the property being sold and after payment of all proper selling expenses the net proceeds of sale then arrived at shall be divided equally between the parties.
Having reached this point I must now, as required by the fourth step to which I have already made reference, examine whether the result achieved is fair and equitable and whether any adjustment need be made.
I do not wish to make further comment upon the impression that the parties and witnesses in this case created within me. I am satisfied that the husband has had the benefit of significant sums of money which he has deliberately sought to conceal. I am satisfied however that the wife’s evidence is, by no means, to be accepted at its face value. I am satisfied that she kept matters of financial importance from me. In all the circumstances I am satisfied that a proper weighting has been given to both the contributions of the parties as I have found them to be and the matters under s 75(2) of the Act to create the adjustment that I arrived at in regards to that section.
I accept that the wife will do considerably better under these orders than will the husband indeed she will effectively receive two thirds of the property meaning that the husband will receive approximately one third of the property that I have determined.
However, and for the reasons I have given, I am satisfied the husband has matters in his favour which makes the result I have arrived at a proper and appropriate one. I am, in all the circumstances, satisfied that the orders that I propose to make are proper in all the circumstances of this case.
The orders that I therefore make are set out as Orders 1 to 21 at the commencement of this Judgment.
I certify that the preceding three hundred and eighty three (383) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier.
Associate:
Date: 9 September 2011
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