Keneally and Keneally

[2010] FamCA 983

FAMILY COURT OF AUSTRALIA

KENEALLY & KENEALLY [2010] FamCA 983

FAMILY LAW – PROPERTY SETTLEMENT – Initial Contributions – Just and Equitable – Self Managed Superannuation

APPLICANT: Ms Keneally

RESPONDENT: Mr Keneally

FILE NUMBER: PAC 2229 of 2008

DATE DELIVERED: 5 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Cleary

HEARING DATE: 16, 17 and 18 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Robyn Druitt

SOLICITOR FOR THE APPLICANT: Calvin Nelson & Co

COUNSEL FOR THE RESPONDENT: Ms Melissa Gillies

SOLICITOR FOR THE RESPONDENT: Konstan Lawyers

Orders

1. That the Husband pay to the Wife the sum of $150,179 within three (3) months of the date of these Orders.

2. That the right of the Husband to pay the sum of $150,179 shall expire on the day 3 months from the date of making these Orders whereupon the provisions of Order 3 herein shall apply.

3. That on the first day after the expiration of the period allowed in Order 1 the Husband shall forthwith do all things and execute all necessary documents and to take all steps to effect the sale of the property known as and situate at W being the whole of the land in Folio Identifier …

   3.1The Husband shall list the said property for sale by private treaty with a real estate agent, at a price to be agreed between the Husband and the Wife.

   3.2In the event that the parties do not agree upon the price at which the property is offered for sale either at the time the property is first placed in the hands of agents for sale or thereafter then they agree to seek a recommendation from two different real estate agencies operating in the area of the property and to offer the property for sale at the mean of the prices recommended.

   3.3In the event that an offer is made to purchase the property at a price lower than the price at which the property is offered for sale and the parties do not agree as to whether or not the offer should be accepted then the parties agree to take and accept advice from a Valuer, at the expense of the Husband as to the price at which the property should be sold.

   3.4In the event that the property is not sold by private treaty pursuant to the last preceding sub-clauses within 3 months of being first listed then the Husband shall forthwith take all necessary steps to sell the home by auction pursuant to the following sub-clauses.

   3.5The property shall be placed in the hands of a reputable real estate agent practising as an auctioneer within the area of the property. In the event that the parties do not agree on the auctioneer to be employed the Husband shall nominate three (3) such auctioneers and the Wife shall select one (1).

   3.6    The Husband shall execute all such documents as may be necessary to authorise the auctioneer to sell the property by auction.

   3.7In the event that the parties do not agree as to the reserve price to be placed on the property at the auction then the Husband and the Wife agree to accept a valuation from a Valuer, at the joint expense of the parties, to be nominated by the President of the NSW Division of the Australian Property Institute as to the reserve price.

   3.8The Husband agrees to pay to the auctioneer any sums reasonably required for advertising expenses in relation to the auction.

   3.9    The Husband and the Wife shall attend at the auction sale and in the event that the property is not sold shall negotiate with the highest bidder. In the event that an offer is made below the agreed reserve price and then the parties shall submit the property for further auction with a reserve price of 90% of that previously set on a cyclical basis until the property is sold.

   3.10On either a sale by private treaty or a sale by auction the Husband shall execute the contract for sale and in due course the transfer.

   3.11The Husband shall co-operate in all ways with the agent in relation to sale by private treaty or by auction including making the key available, allowing inspection of the home at times reasonably requested by the agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers.

   3.12Konstan Lawyers shall act for the Husband in connection with such sale and the Solicitors for the Wife shall act for the Wife.

   3.13Upon completion of the sale then the funds shall be disbursed as follows:

   3.13.1discharge of the Mortgage to Australia and New Zealand Banking Corporation Limited;

   3.13.2payment of commission and the costs of sale, valuers etc.

   3.13.3payment of the reasonable legal costs of sale of both the Husband and the Wife.

   3.13.4payment to the Wife of the sums due to the Wife including interest.

   3.13.5the balance if any to the Husband.

4. That pending payment in full to the Wife the Husband shall not further encumber the property known as W property and may occupy the property known as W property subject to Order 3 and the Husband shall pay as and when they fall due the following outgoings on the home:-

   4.1      The Council & Water rates;

   4.2      The property and contents insurance;

   4.3The telephone, gas and electricity accounts and all other normal domestic outgoings;

   4.4The cost of all reasonably necessary repairs and maintenance including the cost of any redecoration.

5. That in the event that the Husband fails to pay the sum required in accordance with these Orders to the Wife and W property is to be sold then the Husband shall vacate the premises at W at the request of the Wife which request shall not be made earlier than 30 days after the first listing of W property for sale.

6. That pending the payment of the sum referred to in Order 1 herein the Wife shall be entitled to register a Caveat against the interest of the Husband in the properties at W and at N to secure the due payment of the sum referred to in Order 3 herein.

7. That pursuant to s 90MT(1)(a) of the Family Law Act a splitting order be registered against the superannuation interest of the wife in the Keneally Super Fund (“the Fund”) in favour of the husband for the amount of 100% of the superannuation interest of the wife and there be a corresponding reduction in the interests of the wife.

8. That the applicant Wife shall do all acts and things necessary to cause:

   8.1the sale of the property known as the Philippines house together with the contents of that property;

   8.2the proceeds of the sale of the Philippines house and contents to be deposited into the ANZ V2 Plus Account in the name of the Fund being account number … within seven (7) days of the applicant Wife’s receipt of the said proceeds of sale; and

   8.3a notification to the Husband of an account nominated by her for the receipt of funds.

9. That upon Order 8 being complied with, the respondent Husband shall do all acts and things necessary to cause the proceeds of sale of the Philippines house and its contents to be paid to him from the Fund.

10. That within seven (7) days of the funds referred to in Order 8 being paid to the respondent Husband by the Fund the respondent Husband shall cause those monies to be paid to the applicant Wife to the account nominated by her.

11. That after seven (7) days from the receipt by the Wife of the payment out to her from the Fund referred to in Orders 8, 9 and 10 above, the applicant Wife shall sign all documents and do all things necessary to resign as a trustee of the Fund.

12. That the Fund is declared to have been accorded procedural fairness in the circumstances of the proceedings.

13. That paragraphs 7 to 12 inclusive of these Orders are binding on the Husband and the Wife as trustees of the Fund and on the Fund.

14. That as and from the making of these Orders, the Husband shall be responsible for and indemnify the Wife in relation to the Fund, and any liability of the Wife personally arising out of her involvement in the Fund, past, present or future as follows:

    14.1any and all liability for payment of tax to the Deputy Commissioner of Taxation past, present or future, howsoever arising, including but not limited to capital gains tax;

    14.1.1any and all liability of the Wife for individual income tax in respect of the Keneally Super fund past, present or further, and howsoever arising including but not limited to capital gains tax;

    14.1.2any and all creditors of the Super Fund;

    14.1.3any and all borrowings of the Super Fund.

15. That the Wife be declared to have the sole right, title and interest in the property situate at and known as the Philippines resort unit including all interest and entitlement to the furniture, furnishings and effects presently situated in the property together with the car space in basement 2.

16. That within seven (7) days of the making of these orders the Husband shall do all acts and things and sign all such documents as may be required as prepared by the Wife to transfer to the Wife all of his right, title and interest in the real estate situate and known as G and being the whole of the land more particularly described in folio identifier … (the “G property”).

17. That the parties and each of them are declared to be the sole owner of any other asset standing in that parties’ sole name not referred to specifically in the above Orders.

18. That simultaneously with the payment to the Wife pursuant to Order 1 the Wife shall do all such acts and things and sign all such documents as may be required and prepared by the Husband to:-

    18.2resign as a director or other office holder of S Pty Limited ACN … (“S Company”);

    18.3transfer to the Husband the whole of her shareholding, right, title and interest in S Company where upon the Husband shall indemnify and keep indemnified the Wife from and against any liability she may have arising out of her involvement with S Company.

19. That in the event of the Husband failing to pay the Wife all of the said monies payable pursuant to Order 1 hereof within the said period then in addition to the payment he shall pay interest according to Family Court Rules from the date the payment was due.

NOTATION:

A.These Orders reflect a division of the total net asset pool 55 percent to the Husband and 45 per cent to the Wife.  In the event that the market value of the Philippines house and/or its contents at time of sale differs from the value agreed for the purpose of these proceedings then the parties shall share in the excess or bear the loss to reflect the overall percentage division.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2229 of 2008

MS KENEALLY

Applicant

And

MR KENEALLY 

Respondent

REASONS FOR JUDGMENT

BACKGROUND 

1. This is a dispute about the division of matrimonial property. 

2. The applicant Wife, Ms Keneally (“the Wife”) was born in the Philippines and she is 52 years of age.

3. The respondent Husband, Mr Keneally (“the Husband”), was born in Europe and is 67 years of age.

4. The Wife came to Australia in 1984.  She arrived from the Philippines on a Tourist Visa.  The Husband in his oral evidence referred to having sponsored her.  The Wife had completed a three (3) year graduate course in nursing in the Philippines and then went on to a Bachelor of Science degree in nursing.  She had worked as a nurse in the Philippines before coming to Australia.

5. The Husband had married in Europe and came with his Wife and two children of that marriage to Australia in September 1969.  The Husband was employed as a technician and also held a contractor’s license which enabled him to do freelance and subcontracting work.  In addition he had run an electronics business with his first Wife.  He developed a successful business producing electronic products during the course of this marriage.

6. The parties married at Parramatta Courthouse in 1984 and subsequently had a wedding ceremony in December of that year.

7. There was one child of the marriage, P Keneally, born in December 1986.  The parties lived throughout the marriage in the home in W which the Husband had built himself during the course of his first marriage.  In 2006 the parties separated under the one roof.  The separation became final in January 2007 when the Wife was excluded from the family home.  The Husband and the parties’ son continued to live there.  The parties were divorced in mid 2008. 

8. The circumstances of the separation of the parties, including the remarriage of the Husband to a young woman from the Philippines now aged 20 years, contributed to great emotional intensity in the proceedings.  However, the parties made impressive concessions about each other.  The Wife freely conceded that the Husband had been a hard worker and a good provider and likewise the Husband conceded that he had had a hard working wife:-

   “We worked, all of us, to maximum ability.”

9. Fortunately the efforts of the parties have generated sufficient assets for each of them to be properly housed with some further provision for their future.

10. I formed the impression that the Wife had suffered severely through the breakdown of the marriage but has now come to terms with it.  This was reflected in her change of position to allow the Husband to remain in the family home if he is able to do so and to retain the main asset of the parties’ superannuation fund which generated the Husband’s retirement income.

11. I formed the impression that the Husband had a desire to reach a proper agreement with his former wife about property but had not anticipated, and was unable to deal with, the intensity of her distress over the separation, divorce and his remarriage.

Documents relied on

1. The Wife relied on:

   a)Application for Final Orders filed on 14 November 2008;

   b)Affidavit of the wife filed on 26 July 2010;

   c)Affidavit of Mr M filed on 26 July 2010;

   d)Affidavit of Z Keneally filed on 26 July 2010;

   e)Affidavit of P Keneally filed on 26 July 2010;

   f)Affidavit of Ms PE filed on 26 July 2010;

   g)Affidavit of Mr MG filed on 26 July 2010;

   h)Affidavit of Mr KZ filed on 26 July 2010; and

   i)Financial Statements of the wife filed on 14 November 2008 and 26 July 2010.

2. The Husband relied on:

   a)Response to Initiating Application filed on 18 March 2009;

   b)Affidavit of the husband filed on 26 July 2010;

   c)Affidavit of P Keneally filed on 26 July 2010;

   d)Affidavit of L Keneally filed on 26 July 2010; and

   e)Financial Statement of the husband filed on 26 July 2010.

Orders sought by the Wife

1. The Wife sought Orders in a Minute of Order provided after the hearing concluded reflecting her changed position:-

   1.That within seven (7) days of the making of these Orders the Husband shall do all such acts and things and sign all such documents as may be required as prepared by the Wife to transfer to the Wife all of his right, title and interest in the real estate situate and known as [G property] and being the whole of the land more particularly described in Folio Identifier […].

   2.The Wife shall do all things and sign all documents as are necessary to transfer all her right title and interest in the house at […], Philippines to such person as may be nominated by the Husband as trustee for the [Keneally] Superannuation Fund.

   3.That paragraphs 3 to 7 (inclusive) of these orders are binding on the Husband and the Wife as trustees of the [Keneally] Super Fund ("the Fund") an on the [Keneally] Super Fund.

   4.That the base amount allocated to the Wife in these proceedings out of the [Keneally] Super Fund or the interest of the Husband in these proceedings in the Fund is $315,088.96.

   5.That pursuant to s 90MT(l)(a) of the Family Law Act 1975 ("the Act") whenever a splittable payment becomes payable in respect of the interest of the said Husband in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount and that there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have become payable but for these Orders.

   6.That Order 4 has effect from the operative time and the Wife shall thereafter forthwith resign as a member and trustee of the Fund.

   7.The operative time for the purpose of Order 4 of these Orders is four (4) business days after the date of service of these Orders upon the trustees of the Fund.

   8.That there be liberty to apply to each party in relation to the implementation of the Orders affecting the superannuation interest.

   9.That as and from the making of these Orders, the Husband shall be responsible for and indemnify the Wife in relation to the [Keneally] Fund, and any liability of the Wife personally arising out of her involvement in the Fund, past, present or future as follows:

   (a)any and all liability for payment of tax to the Deputy Commissioner of Taxation past, present or future, howsoever arising, including but not limited to capital gains tax;

   (b)(i)        any and all liability of the Wife for individual income tax in respect of the [Keneally] Super fund past, present or further, and howsoever arising including but not limited to capital gains tax;

   (ii)any and all creditors of the [Keneally] Super Fund;

   (iii) any and all borrowings of the [Keneally] Super Fund.

   10.The Wife be declared to have the sole right, title and interest in the property situate at and known as [the Philippines resort unit and car space].

   11.That the Husband pay to the Wife the sum of $503,186 on or before the day 3 calendar months from the date of making of these Orders which said sum shall be paid to Calvin Nelson & Co Trust Account or as the said Solicitors shall direct.

   12.That simultaneously with the payment pursuant to order 11 the Wife shall do all such acts and things and sign all such documents as may be required and prepared by the Husband to:

   (a)resign as a director or other office holder of [S] Pty Ltd ACN […] (“[S Business] Pty Ltd”),

   (b)transfer to the Husband the whole of her shareholding, right, title and interest in [S Business] Pty Ltd,

   whereupon the Husband shall indemnify and keep indemnified the Wife from and against any liability she may have arising out of her involvement with [S Business] Pty Ltd.

   13.That in the event of the Husband failing to pay the Wife all of the said moneys payable pursuant to Order 11 hereof within the said period, then in addition to the payment of the said $503,186 he shall pay interest on the unpaid portion of that sum outstanding according to the Family Court rules from the date the 3 months after the making of these orders.

   14.The right of the Husband to pay the sum of $503,186 and interest shall expire on the day 3 months from the date of making these Orders whereupon the provisions of Order 13 herein shall apply to the intent that the Husband's opportunity to pay the sum of $503,106 and interest shall expire on the day 3 months from the date of making these Orders.

   15.On the first day after the expiration of the period allowed in order 11 the Husband shall forthwith do all things and execute all necessary documents and to take all steps to effect the sale of the property known as and situate at [W] being the whole of the land in Folio Identifier […]

   15.1The Husband shall list the said property for sale by private treaty with a real estate agent, at a price to be agreed between the Husband and the Wife.

   15.2In the event that the parties do not agree upon the price at which the property is offered for sale either at the time the property is first placed in the hands of agents for sale or thereafter then they agree to seek a recommendation from two different real estate agencies operating in the area of the property and to offer the property for sale at the mean of the prices recommended.

   15.3In the event that an offer is made to purchase the property at a price lower than the price at which the property is offered for sale and the parties do not agree as to whether or not the offer should be accepted then the parties agree to take and accept advice from a Valuer, at the expense of the Husband as to the price at which the property should be sold.

   15.4In the event that the property is not sold by private treaty pursuant to the last preceding sub-clauses within 3 months of being first listed then the Husband shall forthwith take all necessary steps to sell the home by auction pursuant to the following sub-clauses.

   15.5The property shall be placed in the hands of a reputable real estate agent practising as an auctioneer within the area of the property. In the event that the parties do not agree on the auctioneer to be employed the Husband shall nominate three (3) such auctioneers and the Wife shall select one (1).

   15.6The Husband shall execute all such documents as may be necessary to authorise the auctioneer to sell the property by auction.

   15.7In the event that the parties do not agree as to the reserve price to be placed on the property at the auction then the Husband and the Wife agree to accept a valuation from a Valuer, at the joint expense of the parties, to be nominated by the President of the NSW Division of the Australian Property Institute as to the reserve price.

   15.8The Husband agrees to pay to the auctioneer any sums reasonably required for advertising expenses in relation to the auction.

   15.9The Husband and the Wife shall attend at the auction sale and in the event that the property is not sold shall negotiate with the highest bidder. In the event that an offer is made below the agreed reserve price and then the parties shall submit the property for further auction with a reserve price of 90% of that previously set on a cyclical basis until the property is sold.

   15.10On either a sale by private treaty or a sale by auction the Husband shall execute the contract for sale and in due course the transfer.

   15.11The Husband shall co-operate in all ways with the agent in relation to sale by private treaty or by auction including making the key available, allowing inspection of the home at times reasonably requested by the agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers.

   15.12Konstan Lawyers shall act for the Husband in connection with such sale and the Solicitors for the Wife shall act for the Wife.

   15.13Upon completion of the sale then the funds shall be disbursed as follows:

   a.discharge of the Mortgage to Australia and New Zealand Banking Corporation Limited;

   b.Payment of commission and the costs of sale, valuers etc.

   c.Payment of the reasonable legal costs of sale of both the Husband and the Wife.

   d.Payment to the Wife of the sums due to the Wife including interest.

   e.the balance if any to the Husband.

   16.That in the event of the Husband or Wife refusing or neglecting to sign any documents herein including the necessary documents to effect such sale, transfer or assignment within seven days of being requested by a party, then the Registrar of the Court, pursuant to Section 106A(1) of the Family Law Act, 1975, is hereby appointed and empowered, by consent, to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non defaulting party on an indemnity basis simultaneously with the receipt of any monies pursuant to these Orders.

   17.Pending payment in full to the Wife the Husband shall not further encumber the property known as [W property] and may occupy the property known as [W property] subject to order 16 following  and as and he Husband shall pay as and when they fall due the following outgoings on the home:-

   17.1The Council & Water rates;

   17.2The property and contents insurance;

   17.3The telephone, gas and electricity accounts and all other normal domestic outgoings;

   17.4The cost of all reasonably necessary repairs and maintenance including the cost of any redecoration.

   18.In the event that the Husband fails to pay the sum required in accordance with these orders to the Wife and [W property] is to be sold then the Husband shall vacate the premises at [W] at the request of the Wife which request shall not be made earlier than 30 days after the first listing of [W property] for sale.

   19.That pending the payment of the sum referred to in Order 11 herein the Wife shall be entitled to register a Caveat against the interest of the Husband in the properties at [W] and at [N] to secure the due payment of the sum referred to in Order 8 herein.

   20.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party be solely entitled to the exclusion of the other to all other property, resources and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the real property known as [W property] are deemed to be in the possession of the Husband with the exception of the chattels nominated in the attached schedule which are to be collected at least 7 days prior to the payment referred to in paragraph 8 herein.

   21.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

   22.With respect to debts and liabilities, whether past present or future, as are in the sole name of the Husband or Wife, neither the Husband nor the Wife will seek contribution from, or indemnity by the other, with respect to such debts and liabilities.

Orders sought by the Husband

1. The Husband sought the following orders:-

   1.That the Respondent Husband be declared to have the sole right, title and interest in the property situate at and known as [W] NSW (including all interest in and entitlement to the furniture, furnishings and effects presently situate in the property).

   2.That pursuant to s 90MT(1)(a) of the Family Law Act a splitting order be registered against the superannuation interest of [the wife] in the [Keneally] Super Fund in favour of [the husband] for the amount of 100% of the superannuation interest of [the wife], and there be a corresponding reduction in the interest of [the wife].

   3.That the Applicant Wife shall do all acts and things necessary to cause:

   (a)the sale of the property known as [the Philippines house] (hereafter “the [Philippines house]”) and its contents;

   (b)the proceeds of the sale to be deposited into the ANZ V2 Plus Account in the name of the [Keneally] Super Fund – being Account Number […] – within seven (7) days of the Applicant Wife’s receipt of said proceeds.

   4.Upon order 3(b) being complied with, that the Respondent Husband shall do all acts and things necessary to cause the proceeds of the sale of the [Philippines house] to be paid to him from the [Keneally] Super Fund.

   5.That within seven (7) days of the money outlined in order 4 being received by the Respondent Husband, the Respondent Husband shall cause the monies to be paid to the Applicant Wife.

   6.That within seven (7) days of the date of the sale of the [Philippines house] the Applicant Wife sign all documents and do all things necessary to resign as at Trustee of the [Keneally] Super Fund.

   7.Declaration that the [Keneally] Super Fund has been accorded procedural fairness in all circumstances of these proceedings.

   8.That the Applicant Wife be declared to have the sole right, title and interest in the property situate at and known as [the Philippines resort unit] (including all interest in and entitlement to the furniture, furnishings and effects presently situate in the property).

   9.That the proceeds of sale from the property situate at and known as [G] NSW be disbursed in the following manner and priority:

   9.1Payment of agent's commission and advertising expenses and legal expenses of the sale.

   9.2Payment, if any, of any Capital Gains Tax due on the property.

   9.3An amount (TBD) to be paid to the Husband such that it will effect a 70% - 30% division of the matrimonial estate in his favour.

   9.4The balance to be paid to the Wife.

   10.That as between the Applicant Wife and Respondent Husband, and subject to the above Orders, the Applicant Wife and Respondent Husband shall each indemnify, and keep the other party indemnified, for any debt standing in their name or over any piece of property they are declared to own pursuant to these orders.

   11.That the Applicant Wife and Respondent Husband shall each respectively be declared to be the sole owner of any other asset standing in their sole name not referred to in the above Orders.

   12.That as between the Applicant Wife and Respondent Husband, and subject to the above Orders, the Applicant Wife and Respondent Husband shall each respectively retain all interest in and entitlement to:

   12.1All personal property now in his/her respective possession or control.

   12.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.

   12.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

   13.In the event that either party neglects or refuses to sign any document necessary to give effect to these orders the Registrar of the Family Court of Australia may do so on behalf of the defaulting party.

THE EVIDENCE

Mrs Keneally - Applicant Wife

1. The Wife gave her evidence in a straightforward and at times passionate way.  She freely conceded that the Husband had had greater assets than she had at the date of marriage, that he had worked full time and done additional contracting work.  She agreed that she had been able to work at first in nursing, the area of her qualification.  All propositions that were put to her about the Husband’s work around the home, in terms of maintenance of the pool and swimming pool area, the mowing of lawns, small household repairs and painting were willingly accepted.

2. There was evidence from the Husband that members of the Wife’s family had lived downstairs in the family home from time to time.  The evidence of the Wife was that whenever she and the Husband had been able to do so they assisted members of her family by accommodating them in the family home at different times and also by sending money to the Philippines. 

3. An unusual feature of this case was that the Husband’s son from his first marriage, L Keneally (“L”), born in 1965, had married the Wife’s sister, known as Z Keneally (“Z”).  L and Z lived with the parties for a time and became involved in the running of the parties’ business, S Business.  They continue to do so.

4. The Wife was questioned about the property at N where that business is conducted.  She was less willing to make concessions about the work that the Husband had done to improve that property.  She agreed that he had put up a fence and renovated the factory but initially was not willing to accept that his improvements had extended the size of the factory.  The Wife was shown photographs of the factory and at that point said:

   “When I see the photos I cannot disagree.”

   She did not concede that the Husband had done the work but rather asserted that it had been done by subcontractors.

5. Given the straightforward and spontaneous way the Wife otherwise gave her evidence, it does seem likely to me that in this respect the Wife was simply not involved with the work that was being done on the N premises.  I note that the parties’ son, P, was about 7 years at the time and that it was only after the business began to develop that the Wife became involved in it.

6. A proposition was put to the Wife as follows:-

   Q:“During the marriage you did the inside work and he did the outside work.”

   A:“Not entirely.”

7. The evidence suggested that all of the inside work in terms of cleaning, cooking, washing, shopping and the day to day care of P was undertaken by the Wife and that all of the outside work, including garden and pool maintenance, repairs, painting and building work was undertaken by the Husband.  However, there seemed little doubt that each of them as required turned their hand to whatever work needed to be done.

8. When the Wife was asked about the business at N she agreed that it was the main asset of the parties’ self managed superannuation fund and that L and Z, who were running the business, wanted to remain at N because of the difficulty of relocating machinery.  She was asked whether the factory at N should be sold.  Her answer was:

   “Best thing is to sell.”

9. However, the Wife’s final position was that the Husband should retain the factory as a superannuation asset.  I accept the submission of counsel for the Wife that this, combined with a willingness for the Husband to retain the family home if able to do so, was a gracious position for the Wife to take.

10. The S business was sold to L and Z in about June 2003 and rental income has been paid to the superannuation fund.  The sale marked the second retirement of the Husband. Thereafter he began to spend increasing amounts of time in the Philippines.

11. In 2004 the parties decided to buy two properties in the Philippines.  The house (“the Philippines home”) and the resort unit (“the resort unit”) were purchased.  The resort unit was used by the Husband from its purchase date in April 2004 to live when he was in the Philippines.  It was otherwise left empty until November 2009.

Litigation in the Philippines

1. The Wife was cross examined about legal proceedings in the Philippines which she had initiated. She conceded that she had given evidence through her documents in that case which did not accurately reflect the reality of the parties’ situation.  That is, although property in the Philippines was owned by them jointly and had been purchased with joint funds, the Wife asserted in the Philippines proceedings that the properties were hers and had been purchased with her sole funds.  There was a document, annexed as page 241 of the annexure to the affidavit of the Husband filed 26 July 2010, which stated that that in relation to the house in the Philippines the Wife had purchased the property for 2,000,000 Pesos and that the money used to purchase the property was:-

   “her own personal account and savings and I have nothing to do about it”.

   During his cross examination the Husband referred to this document.  The document is inconsistent with the evidence of both parties as to the way the property was funded and as to the purchase price.  It is consistent with evidence given by the Wife about conveyancing in the Philippines, that it is usual for there to be two documents prepared, one reflecting the true price paid and another one reflecting a gross undervalue.  There was no challenge to this evidence given by the Wife.

2. It is clear from the oral evidence of the Wife that she took the proceedings in the Philippines for at least two reasons:  to protect her position and to protect her reputation.  The Wife said she was offended by information that the Husband had been staying at the resort unit with a young woman who he probably referred to at that time as “Mrs Keneally”.  In the proceedings in the Philippines, the Wife incorrectly asserted that she was entitled to exclusive use of the property and that it had been purchased solely from her own funds.  The Husband was excluded from the property in the Philippines as a result of the litigation in that country. 

3. This evidence gives weight to the proposition put by counsel for the Husband that there could be practical difficulties in the properties in the Philippines or either of them being transferred to the Husband.  Further, given the history of the matter, it would be unrealistic to expect that the Wife would do everything in her power to assist the Husband acquiring those properties, especially as a foreign national such as the Husband would not be entitled to have the Philippines house registered in his own name.

4. There is insufficient evidence to make a finding that the parties misrepresented their position to the authorities in the Philippines at the time of the purchase of the two properties.  That is, that the Wife was the sole source of funds for the provision of properties.  I find that on the balance of probabilities both parties did what it took to purchase two properties in the Wife’s name in the Philippines and that the Wife took advantage of the situation in commencing proceedings to exclude the Husband from the resort unit. 

5. The Wife denied that she had received requests to withdraw the proceedings commenced in the Philippines.  She agreed that she had not withdrawn them.  The Wife however denied that she had made threats in relation to the Husband or to the child D.  On balance it seems likely that the Wife did make angry statements directed at the Husband and his involvement with three young women in the Philippines.  There is no basis for accepting that there was any attempt by the Wife to implement any threat.

6. The Wife was cross examined about a locked drawer in the bedroom of the resort unit.  She said she had been looking for bank statements:-

   “I didn’t find what I was after … I was looking for the bank statements because I was suspicious of him.”

7. The Wife denied the proposition that she had found cash in the drawer.  She agreed that her sister’s son had been present with her and that her sister had subsequently returned documents to the Husband.

8. The Wife agreed that she had a motor vehicle, a Honda CRV, returned to her by the courts on the basis that it had been unlawfully retained by the Husband.

The G Property

1. In 2001 the parties purchased the property at G for use as a family holiday home.  In December 2004 the property was subdivided creating two blocks.  One block was retained and the other sold for $200,000.  The Wife agreed she had taken over the maintenance in 2004 and that the Husband had undertaken repairs in 2006 when he returned for a longer period of time to Australia.

Jewellery

1. There was extensive cross examination of the Wife about jewellery.  The Wife said that she had produced all the jewellery in her possession and I formed the strong impression that there was a lot more jewellery that the Wife had either given away or had put into the custody of another person.  In the end there was an agreement in relation to the value of jewellery to be included in the asset pool. 

Loans to the Family

1. The Wife was cross examined about gifts of money by her and the Husband to her parents and a loan to her sister in New York.  In this regard it is clear that both parties shared a belief in assisting extended family and that they did so throughout the marriage, both by the provision of funds and accommodation within the family home.  This was to some extent a greater contribution by the Husband but as previously stated the two families are interwoven in more ways than one.

2. The Wife conceded that she had drawn monies from the joint account in 2006.

3. The Wife was criticised for having used a power of attorney which had been granted by the Husband for the sale of G property.  Her response to that was as follows:-

   “I didn’t have an idea what were his plans for our marriage.  I didn’t know.  It was my last resort.  It was a joint account.  It was very harsh to cut me off that way. I knew I wasn’t supposed to access the account.  It was a blessing in disguise when I saw the power of attorney.”

4. I accept the evidence of the Wife in this regard.  I also accept the evidence of the Husband who said he also transferred funds until the property was sorted out.  However, in effect both parties made withdrawals from the joint account in an attempt to preserve their position.

Separation

1. There had been considerable affidavit evidence about events in January 2007 when the Wife was excluded from the family home in W.  Unfortunately, the parties’ son, P, provided an affidavit in relation to this matter.  The Wife denied that she had not wanted to remain in the house in January 2007 and that she was moving her personal possessions out.  Her evidence was that the Husband had said to her:-

   “When are you going to leave this house?  Either I kill you or you kill me.”

2. There was then the following exchange:-

   Q:“The day after he left for the Philippines you tried to gain access.”

   A:“Yes.  I expected to get in.”

   Q:“You went with a group of friends.”

   A.“No, I went with my sister and I couldn’t get in.  I came to the house with [my sister] and friends from a prayer group.  I rang the police and the [S family] (referring to tenants in the home) showed a lease and they said it was a family matter.  Nothing to be done.”

3. I accept that the Wife expected to move back into the home after the Husband moved to the Philippines and that the Husband had issued a lease to third parties with the intention of excluding the Wife from the home legally which he successfully did.

4. My overall impression of the Wife was that there was a period of time when her actions were a reaction to separation.  By purportedly preserving assets in the Philippines she was attempting to control the life of the Husband in that country.  The Husband has now returned to live in Australia with his pregnant Wife and their young baby.  There was no evidence of any disturbance or disruption or threats of the kind previously alleged.  I find that the Wife is a straightforward witness who during the period from January 2007 has at times behaved in a way that is out of character for her and that she is now reconciled to the separation and its circumstances.

Mr KZ

1. The evidence of Mr KZ was that he had been a long term friend of the Husband’s but that they had had a falling out in July 2009.  His evidence suggested that his support of the Wife in these proceedings was partly by way of apology to her, and partly to disconcert and disadvantage the Husband. 

2. I note the following exchange:

   Q:“You came to court with [the wife] in July 2009.”

   A:“Yes.”

   Q:“Did she ask you to come to court?”

   A:“I offered her my support.”

   Q:“When you agreed to come to court you knew he would be surprised.” [referring to the husband]

   A:“[The husband] knew I was going to help his ex Wife.”

   Q:“How did he know you were going to help her?”

   A:“I’ve done a lot of wrong things to ex Wife I’m going to straighten them out.”

   Q:“He told your Wife about relationships you’d had in the Philippines.”

   A:“Yes.”

   Q:“There’s enormous animosity between you?”

   A:“Yes but not now.”

3. Mr KZ remained in Court after his evidence for the balance of the proceedings.  I formed the view that he was motivated by anger towards the Husband, formerly a close friend.

4. There was some evidence about whether or not the Husband had bought a rice field[1] for a young woman in the Philippines.  Mr KZ said that he had told the Wife last year about the rice field and various other details of the Husband’s alleged spending on young women in the Philippines.  He agreed that in 2008 he and the Husband had intended to open a business together.  There was this exchange:-

   Q:       “You wanted to buy a bar.”

   A:       “No, I wanted a legitimate hotel.”

   [1] Affidavit of Mr KZ para 13

5. Mr KZ’s evidence was replete with stories involving the husband’s alleged conduct in the Philippines and how he had communicated this information to the Wife. 

6. I did not find Mr KZ to be an impressive witness.  His motivation in assisting the Wife appeared to be directed towards embarrassing or disadvantaging the Husband by involving himself in the proceedings.  His evidence did not assist in the determination of any issue.

Mr Keneally - Respondent Husband

1. The Husband gave his evidence in a calm and considered way.  His position had been that at the time of the marriage of the parties he was debt free and the home at W unencumbered.

2. Having been shown documents relating to property settlement with his first Wife, the Husband conceded that there were liabilities outstanding in April 1984 (see Exhibits “W4” and “W5”) being a mortgage of $30,000 and debt of $17,600.  The agreed value of the W property at that time was $128,000.

3. The Husband referred to having sold a business that he and his first Wife managed together and that she had wanted some cash money to buy a house.  Quite appropriately, the questions were put to the Husband that there was no reference to the business, cash or bank account in his financial statement in those proceedings.  However, there was a reference in the Maintenance Agreement between the Husband and his first wife (Exhibit “W5”) to there having been a sale of a business owned by them.  It was not possible to understand the full picture of the Husband’s first marriage.  It was clear there had been a business which had been sold, that there was a bill of sale from the purchase which would have delivered a sum of $7,500 to each of the parties in February 1985 and that there was a mortgage of $30,000 on the W home.

4. The proposition was put to the Husband that he was exaggerating his position by stating in his affidavit that he had no liabilities at the time of his marriage to the Wife.  I accept the evidence of the Husband that his memory after 26 years was of being debt free.  He readily accepted that the position had in fact been otherwise.

Separation – January 2007

1. The Husband was cross examined about his decision to exclude the Wife from the home and to arrange for a tenancy at short notice to ensure that she was unable to re-enter.  The significance of this decision by the Husband is that the Wife was forced to live in rented accommodation whilst the house was used by tenants and the parties’ son, P.  This put her at a comparative disadvantage for the whole of the period until hearing.

Loans to Family

1. The Husband confirmed that he had seen gifts of money or assistance to members of the Wife’s family and to his own son and the Wife’s sister, L and Z, not as acts of generosity, rather just helping, but to the extent that it was generosity it had been joint.

2. In relation to the loan, the Husband was asked questions about the money that had been lent to the Wife’s parents and he confirmed that he was not expecting to be repaid that money.  However, in respect of the monies to the Wife’s sister,  the Husband asserted that it was a loan of $30,000 and this is borne out by the Wife’s evidence.

3. The Husband expressed the view, which seems realistic given the lack of documentary evidence of the loan, that he will never be repaid by the wife’s sister.  It seems likely that the Wife will either forgive her the sister the loan or that some payments may be made between the sisters in the future. 

Jewellery

1. The Husband graciously conceded that he did not want any of the jewellery back that he had given as gifts to his Wife during the marriage.  He said that he had given her a great many pieces of jewellery over the years as gifts and in answer to the question of what did the Wife give him the Husband’s answer was:-

   “She gave me love.”

   Ultimately the Husband did not press for additional jewellery items to be included in the asset pool.

2. The Husband was cross examined about his financial statement and Visa statements.  I formed the view that there had been a double counting of the Husband’s expenses by the inclusion of a $500 repayment for his Visa card as well as for many routine expenses, food and petrol for example, were routinely paid by the Visa card.  I disregard the Visa card payment accordingly.

3. The Husband had also failed to include in his financial statement the Centrelink benefits which were received by his current Wife, C, and for their baby son, R.  There had been no reference in the financial statement to his Wife and son living in the home.  The Centrelink benefits (family allowance) amount to approximately $400 per fortnight.

4. The Husband’s future will be to continue to draw between $6,000 and $7,000 per month which he considered would be maintainable.  The superannuation fund of which he will become the sole trustee and beneficiary will have the benefit of arrears of rent currently being paid at the rate of $2,000 per month which will continue over the next approximately 18 months.

5. The Husband gave evidence that he pays child support for his daughter, D, aged 2 years, the daughter of a young woman in the Philippines whose name is HE in the order of $100 per month plus additional expenses.

6. I am satisfied that the Husband is able to comfortably provide for his current wife and his young children.  He provides his Wife with $5,000 per month and permits her to spend anything in excess of what is required for the household in any way she chooses, including assisting her family. 

7. I note that the Husband will retain the use of the BMW which is owned by the superannuation fund.

8. The Husband was cross examined about his friendship with Mr KZ.  This cross examination confirmed that there was a long history of friendship and business dealings between the two men.  The Husband conceded that his current Wife, C, had saved some money from the money he allowed her, which she used to buy a boat for her father and a boat for her brothers.  She had also paid for her mother’s hospital fees out of that income.  These matters have no bearing on issues for determination. 

Mr B, Valuer, Single Expert

1. Mr B had valued the property at N at $900,000.  The Husband contended for a value of $780,000.  The value was proposed on the basis that there was no lease in place for the tenants at N (L and Z Keneally) and that there were arrears of rent.  On behalf of the Husband it was asserted that this meant that N property was an uncertain investment proposition. 

2. Mr B was confident in a valuation of $900,000 with vacant possession of the property.  He also was reasonably confident of that valuation on an investment basis.  He agreed that without a signed lease and with arrears of rent there was an impact on value but not on the capitalisation rate.  He was clear that if the arrears were made good and there was vacant possession then the property would be $900,000.

3. In my view the current arrangement at N represents a secure investment proposition for the Husband.  I accept the evidence of the Husband that there is a relationship of trust and confidence between himself and his son, L, and I find that the valuation of the property is undiminished by the absence of a lease and there being some arrears of rent. 

4. It would be both artificial and unfair to the Wife to devalue the property to $780,000, as was pressed, due to the absence of a lease and arrears of rent.

5. In circumstances where the Husband will keep the property and where he has every confidence in the arrangements that are in place, I find that value is unaffected.

Mr M, Accountant

1. Mr M is the accountant for the Keneally Superannuation Fund.  He gave evidence about how the member’s funds had been attributed because neither of the parties knew how it had been done.  In fact, the allocation had been on the weighted average of the member’s balance.

2. The Husband had had superannuation at the end of his employment in about 1992 and accordingly the weighting had always been in his favour.

3. Mr M confirmed that the assets of the superannuation fund were:-

   a)the house in the Philippines;

   b)the property at N;

   c)the fixtures and fittings at the N property;

   d)the V2 account in the joint names of the parties; and

   e)the BMW motor vehicle.

4. Mr M was questioned about a superannuation asset, the house in the Philippines.  He agreed that the Philippines house should be tenanted and that the factory should be rented or available for rental. 

5. Mr M expressed the following views:-

   a)that if the property was transferred to the Wife she would be able to put it in her own self managed fund;

   b)if the Superannuation Fund became solely the fund of the Husband so that he was the sole trustee and sole member, all assets and income of the Husband would become tax exempt; and

   c)if the property in the Philippines was subsequently sold there would be no tax payable. 

6. Furthermore, he said that the Husband’s income from his pension being exempt, the effect of tax offsets would negate any capital gains tax on the sale of the Philippines house.  Such a payment could be tax free in the hands of the Wife.

THE LAW – SECTION 79(4)

Initial Contributions

1. The Husband owned the property at W which had a value of $128,000 with a mortgage liability of $30,000.  There was additional debt of $17,600.  The Husband had an interest in superannuation arising from his employment of about $30,000.

2. The Wife had $1,600 including the estimated value of some jewellery which she brought with her to Australia.

3. Accordingly, the initial contribution of the Husband was a significant one, not only because of the value of the equity and his superannuation interest but because the home itself became the family home and accommodated the parties and their son P growing up throughout all of the years of the marriage until January 2007 when the Wife left the home.  This is a significant matter and I reject the submission that with the passage of time and the contributions made by the Wife subsequently that early contribution completely fell away in significance.

4. In The Marriage of L A and E A Pearce the Full Court said this:-

   “It is not so much a matter of erosion of contribution but a question of what weight is to be attached in all circumstances to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both parties in considering the weight to be attached to the initial contribution regard must be had to the use made by the parties of that contribution.”

5. In this matter the use of the initial contribution was of particular significance since it provided the family home throughout the marriage. 

6. I assess the parties’ contributions during the marriage as equal.  The Husband had full time employment, performed additional subcontracting work and also effected improvements to the property through his own labour.  Similarly, the Wife also worked to capacity.  She took up nursing work, provided the majority of the care for the parties’ son, P, returned to work as soon as she was reasonably able to do so and engaged in the parties’ joint business.  I accept that the Wife came to have a considerable knowledge of the business through working in the company over the years.  The Wife attended to the majority of the domestic work.  The Husband attended to the majority of work of maintaining and repairing the house, garden and pool.  The parties developed the business together although the Husband’s training and expertise was at the heart of that business.

7. Accordingly, given the significance of the initial contribution by the Husband which gave the parties an ongoing advantage, I assess the parties’ overall contributions to the date of separation as 60 percent by the Husband / 40 per cent by the Wife. 

Section 75(2) factors

1. I note that the Wife is in permanent part time employment earning about $43,000 per year.  She has had episodes of serious ill health, including breast cancer, but it is no part of her case that she is presently unable to work.  She has been living in rented accommodation since January 2007.  She will have sufficient assets to re-accommodate herself and to have a contingency fund for her future.  She will have access to superannuation.

2. The Husband is drawing a superannuation income of $6,000 to $7,000 per month.  The Husband has the responsibility for his current wife who is not presently working and who is expecting the Husband’s second child of that marriage.  There is an older child aged 10 months.  There is also the child in the Philippines, D, aged 2 years for whom the Husband pays child support by agreement.  The Husband has had a back injury which restricts physical work and has pleural plaques from exposure to asbestos. 

3. I am satisfied on the evidence that the Husband will be able to provide for his household and the fact hat he has three very young children to support does not outweigh the disparity in income between the parties.

4. Accordingly, there should be an adjustment in favour of the Wife of about five percent.

5. The overall division is 55 per cent to the Husband and 45 percent to the Wife which is reflected in the distribution referred to above.

ANALYSIS

1. In formulating the orders I have taken into consideration the Wife’s conduct in commencing proceedings in the Philippines to exclude the Husband from the resort unit.  It does seem likely that the Husband would have the utmost difficulty in dealing with properties, both the house and the resort unit, and that it is unrealistic to expect that he will be able to nominate a trustee or to have the properties easily transferred into the name of a Filipino national who will be willing to assist him in that way. 

2. I do not accept that I can take into account that the Husband’s present Wife would be able to play this role.  It is for that reason I consider it appropriate for the Wife to retain the resort unit in the Philippines and indeed both parties seek that order, but more importantly, that the Wife takes responsibility for the sale of the Philippines house on behalf of the Superannuation Fund and that she be ultimately paid out by the Husband a sum equivalent to the proceeds of sale of that property and its contents.

3. In relation to jewellery, I regard the purchase of jewellery by the Husband and by the parties when they were together from joint funds as discretionary spending during the marriage and is unlikely to be a significant financial resource to the Wife in terms of sale.

4. In relation to funds drawn by the Wife from the joint account in 2006 I do not consider that they should be added back into the pool.  The Wife was obliged to obtain rental accommodation from January 2007 whilst the Husband continued to have the use of the family home.  The amounts drawn by the Wife and used by her for herself and for the parties’ son were quite reasonable in those circumstances and did not meet the full extent of the difference between the parties in terms of their finances.

5. In relation to add backs, I include the rent from the G property and the rent from the Philippines house which should properly have been paid into the V2 account.  Accordingly, the Husband will retain those two amounts.

6. In relation to the N property I find that in due course the rent arrears will be paid to the Husband by his son and daughter in law.

7. I note that the Wife may benefit from some or all of the monies outstanding from her sister, but neither party has pursued the matter nor expects to be repaid.  I have excluded the loan from the net asset pool.

8. I note that the Husband will probably have to borrow against the home at W and time has been allowed to enable the Husband to explore that possibility.

9. I disregard, as discretionary spending by the Husband, the fishing boats which were apparently purchased in the Philippines.

10. The parties presented a joint balance sheet as set out below:

JOINT BALANCE SHEET PRESENTED BY PARTIES

SUMMARY
Total Real Estate of parties	$1,240,000	$1,240,000
Financial Institution Accounts	$17,966	$4,500
Miscellaneous	$54,946	$54,946
Add backs	$40,035	$5,800
Total assets	$1,375,833	$1,429,800
Personal liabilities	$0	$0
Total net assets	$1,470,814	$1,490,546
Total net held in superannuation	$1,382,716	$1,249,428
Total all property net	$2,853,530	$2,739,974

Ownership	Description	Wife’s Value	Husband’s Value	Requires Expert Evidence
Husband	Real Estate [W property]	$680,000	$680,000	Agreed
Wife	[G property]	$365,000	$365,000	Agreed
Wife	[Philippines resort unit]	$195,000	$195,000
Total Real Estate	$1,240,000	$1,240,000	Agreed
Financial Institution Accounts
Wife	ANZ Access Cheque Statement A/C No. […]	$7,666
Wife	ANZ Online Saver Account No. […]	$200
Husband	ANZ	$2,500	$2,500
Husband	Cash in Philippines	$2,500
Husband	Cash in Australia	$3,000
Husband	Metrobank A/C No. […]	$2,000	$2,000
Total Liquid Assets	$17,966	$4,500	Not Agreed
Miscellaneous
Husband	Contents at [W]	$10,000	$10,000
Wife	Contents at [resort unit]	$5,000	$5,000	Agreed
Shares
Wife	IAG […] @ $3.42	%,001	$5,001	Agreed
Motor Vehicles
Wife	Subaru Impreza Regn No […]	$15,500	$15,500	Agreed
Wife	Honda CRV (Philippines)	$14,000	$14,000	Agreed
Miscellaneous
Wife	Jewellery as disclosed	$5,445	$5,445	Not Agreed
Total Miscellaneous	$54,946	$54,946
Total Assets	$2,570,878	$2,543,946
Addbacks
Joint	Honda Civic	$5,800
Joint	Rent from [G property]	$5,850
Joint	Half of [P’s] legal fees	$6,275
Joint	Rent from [Philippines house]	$22,110
Total Addbacks	$40,035
Liabilities Financial Resources
[Keneally] Super Fund	Arrears in rent at [N property]	$33,288	$32,763	Not Agreed
Debt due from [wife’s sister]	$30,000
Debt due from [ML]	$40,000
Fishing boats in Philippines	$1,700
Honda Civic	$4,400
Jewellery not disclosed
Total	$33,224	$102,763
Superannuation Fund Assets	Other assets of the [Keneally] Super Fund apart from V2 Plus
[Keneally] Super Fund	Account & properties per y/e 2010 accounts	P54 [Mr M]
[Keneally] Super Fund	ANZ V2 Plus account No. […]	$1,637	$1,637
Wife	Contents at [Philippines house]	$33,005	$33,005	Agreed
[Keneally] Super Fund	[N property]	$900,000	$780,000	Not Agreed
Wife atf [Keneally] Super Fund	[Philippines house] 17,850,000 peso @ 40.7 conversion	$438,574	$438,574
Super Fund	BMW	$9,500	$9,500
Total Assets of Fund	$1,382,716	$1,262,716
Fund Liabilities
[Keneally] Super Fund	Accrued expenses, creditors & GST payable	$13,288	$13,288
Net Assets of fund	$1,319,428	$1,249,428
Membership holdings as per Mr [M]
Wife	Colonial First State	$9,579	$9,579
Wife	[Keneally] Super Fund – member balance as shown in draft financial statements for 30/06/2010	$315,089	0.25507042
Husband	[Keneally] Super Fund – member balance as shown in draft financial statements for 30/06/2010	$920,213
Total	$1,235,302

1. For the reasons set out above I find the net asset pool as set out below to be $2,743,488.

   Real Property and Contents

   a)W property  $680,000

   b)Contents of W property  $10,000

   c)G property  $365,000

   d)Philippines resort unit  $195,000

   e)Contents of the resort unit  $5,000

   Shares

   f)IAG shares:  1,454  $5,001

   Motor Vehicle

   g)Subaru Impreza  $15,500

   h)Honda CRV (Philippines)  $14,000

   Bank Accounts and Cash

   i)ANZ Access Cheque Statement Account  $7,666

   j)ANZ Online Saver Account  $200

   k)ANZ  $2,500

   l)Cash in Philippines  $2,500

   m)Cash in Australia  $3,000

   n)Metrobank A/C  $2,000

   Jewellery

   o)Jewellery  $5,445

   Addbacks

   p)Rent from G property  $5,850

   q)Rent from Philippines House  $22,110

   Superannuation Assets

   r)N property  $900,000

   s)Philippines house  $438,574

   t)Contents at Philippines House  $33,005

   u)BMW motor vehicle  $9,500

   v)ANZ V2 Plus Account  $1,637

   w)Arrears in rent at N  $33,288

   Liabilities of the Superannuation Fund

   x)Accrued expenses, creditors and GST payable                $13,288

   The net total asset pool is  $2,743,488

2. The Wife will retain and receive the the following items in order to receive 45 per cent of the net assets being $1,234,570:-

   a)G property  $365,000

   b)Philippines resort unit  $195,000

   c)Contents  $5,000

   d)Proceeds of sale of Philippines House  $438,574

   e)Contents of Philippines House  $33,005

   f)Bank accounts at ANZ   $7,666

   $200

   g)Shares in IAG  $5,001

   h)Subaru Impreza  $15,500

   i)Honda CRV  $14,000

   j)Jewellery  $5,445

   k)Cash payment from the Husband  $150,179           

   $1,234,570

3. The Husband will retain and pay out the following items in order to receive 55 per cent of the net assets being $1,508,918:-

   a)The home at W  $680,000

   b)Contents  $10,000

   c)Bank accounts at ANZ  $2,500

   d)Metrobank  $2,000

   e)Cash in the Philippines  $2,500

   f)Cash in Australia  $3,000

   g)Rent from G property  $5,850

   h)Balance of Superannuation Fund

   N property  $900,000

   Rent from the Philippines House  $22,110
              Arrears in rent at N property  $33,288
              V2 account  $1,637
              BMW car  $9,500
     $1,672,385
   Less liabilities, accrued expenses, creditors
   and GST payable  $13,288
     $1,659,097
   Less payment to the Wife  $150,179
     $1,508,918

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 November 2010.

Associate:     

Date:              5 November 2010