KROLL & KROLL

[2012] FamCA 200

FAMILY COURT OF AUSTRALIA

KROLL & KROLL [2012] FamCA 200

FAMILY LAW – PROPERTY SETTLEMENT – Where the Husband brought substantial assets to the marriage – Where the Husband continued to contribute significant assets and income to the marriage – Where the Wife has been the primary caregiver of the two children of the marriage – Wife’s capacity to support herself financially – Disparity of parties’ income earning capacities – Where the Husband submits the Wife ought receive 10 to 15 per cent – Contributions of the parties 70:30 per cent in favour of the Husband – s 75(2) factors – 15 per cent adjustment to the Wife. 

FAMILY LAW – PROPERTY SETTLEMENT – Liabilities – Whether three tranches of borrowings forwarded to the Husband by the Husband’s father’s estate would constitute a debt owed by the Husband – Biltoft loan – The first of three tranches advanced as a gift – The second tranche a debt of the parties – The third tranche applied by the Husband to the payment of legal costs and should be considered a debt. 

FAMILY LAW – SPOUSAL MAINTENANCE – Where the Wife submits she is currently unable to obtain gainful employment – Where the parties care for the children in a shared care arrangement such that the Wife has the children for eight nights in a fortnight – Husband’s capacity to pay spousal maintenance. 

Biltoft & Biltoft (1995) FLC 92-614
Mallet v Mallet (1984) FLC 91-507

APPLICANT: Ms Kroll

RESPONDENT: Mr Kroll

FILE NUMBER: SYC 4571 of 2011

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Johnston of Counsel appearing for the Respondent Husband

SOLICITORS FOR THE RESPONDENT: Hazan Hollander, Solicitors

Orders

No orders to issue as yet.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kroll & Kroll has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4571 of 2011

Ms Kroll

Applicant

And

Mr Kroll

Respondent

REASONS FOR JUDGMENT

1.This is an application on behalf of Ms Kroll (the applicant) for certain parenting and financial orders against her husband, Mr Kroll. 

2.At this stage, may I say in passing that some concern was perhaps expressed that the time that I gave myself for the presentation of my reasons for judgment in this case may not have been adequate, and it may be necessary to give me time to refine my reasons.  I make it quite clear that I consider that it is absolutely imperative that these parties be given the courtesy of having a judgment given as soon as possible, so they know where they are and what they can do with their future.  As a result, I make no apology for the lack of refinement or otherwise of my reasons for judgment.  I am not one who is known for cutting and pasting, and I do not intend to do so in this case.  But I will put before the parties my reasons verbally, and I sincerely hope that they will understand them. 

3.The application, as I said, was initially for parenting and property.  I may want to say that the parties’ children’s parenting problems, if I can put it that way, have been overcome by consent orders which were entered into between the parties, I think directly as a result of a family consultant conference, as well as, I am sure, advice from the legal practitioners, who have done a good job.  And such order was made before Johnson J, as I understand it, on 13 December 2011.  And it is before me.

4.The balance of the application by the applicant is for property settlement.  I shall briefly touch upon the chronology of the events in relation to such application.

5.The wife was born in 1972, the husband in 1970.  He is at present employed by N, I think it is, and Associates, and is in a responsible position in which he receives something like $250,000 or thereabouts base salary, together with bonuses which have been up to $140,000 in gross earnings. 

6.As I have said, they commenced cohabitation in or about – and I emphasise “in or about” – the year 1995, and married in 2000.  There is an allegation on the part of both of the parties that during, shall we say, cohabitation and prior to marriage, the parties separated.  On the one hand, the mother says it was for a comparatively short period of some three to four months.  On the other hand, the father, the respondent, says that it was perhaps more like a year. 

7.Her evidence is that she relies upon her own statements, as well as her mother, one Ms C, who was called to give evidence.  I must say that her evidence was particularly impressive, and her uninvited statement to the effect that she was annoyed about her daughter having put her to the inconvenience and expense in having to find another unit in which her daughter was going to share during separation impressed me enormously, and I would prefer her evidence to that of the respondent, as well as Mr F, who was somewhat vague, and if anything, upon a close reading of his evidence, supported the wife’s allegation that the separation was comparatively short.  I must confess, I cannot really understand the great deal of emphasis that has been put upon it, because it would amount to about nine per cent of the time that the parties cohabited if in fact the respondent was right, and much less than that if the mother was.

8.As I said, the parties commenced cohabitation about 1995.  They separated for a brief period towards the end of 1998 to early 1999.  Since that time until about April-May 2011, the parties lived together, unfortunately in circumstances which became unsatisfactory, I would have thought, to both of them, and as I said, this resulted in the parties separating permanently.

9.The two children of the marriage are J, who was born in February 2001, and M, who was born in March 2005.  They are now residing in a shared manner.  It is eight nights per fortnight with the mother, and six with the father.  I have had the opportunity, having been directed to the family report, in which it is quite clear that particularly J is showing signs of emotional distress, but it is not for me to give any homilies or to make any comments about that, since the court is now divested of the difficult problem of making an order in relation to him.  J is particularly disturbed, according to what I have read.  That may not be correct.

10.The respondent came into the marriage – and this is quite clear, it is not cavilled with by the mother – with a substantial asset.  That was a property at S Street, Suburb P, which he purchased in 1994 for about $345,000.  He used savings of about $300,000, and got a comparatively small – in comparison with the mortgages of today’s date, a mortgage, in the sum of $50,000, which was from the CBA.  He has continued in employment.  He is a businessman, and has done, on occasions, particularly well.

11.The applicant really has no qualifications for anything other than, perhaps, office work, or some experience in the fashion industry.  She worked intermittently during cohabitation for not very much, nor for very long.  She tended to give her attention to the children after they came along, and I find that she was the principal caregiver of the children, notwithstanding the fact that I am also satisfied that the respondent did offer, and his offer was accepted, in helping to look after the children.  He perhaps was, shall we say, slightly more hands-on than many of the fathers that I have seen or heard from in this court.  But nevertheless I make it quite clear that I am of the opinion that the mother’s contribution is substantial in that she gave birth to the children, that she has been the primary caregiver, and in effect, if only by the tyranny of days per week, she is still the caregiver on eight nights out of 14.  

12.Subsequent to cohabitation, the husband purchased a property in C Street, Suburb P, for some $900-odd thousand dollars, I believe it was.  He got a mortgage from the National Australia Bank for a considerable sum.  At that stage he was trying to sell the S Street, Suburb P property, unsuccessfully, and this caused him some considerable pain, but he was able to eventually sell it, in September of 1999.  He sold it for more than what he purchased it for, and applied a considerable amount of that money – the purchase price, close to $400,000, towards the mortgage account.

13.He at that stage seems to be financing himself quite well.  He became involved in a company known as A Pty Ltd, which transferred its assets to a business known as L Pty Ltd.  I understand this was run with a friend of his, Mr B.  A Pty Ltd was wound up, and he received about $130,000 or thereabouts.  That was in the year 2000.  L Pty Ltd was sold, and the husband received an amount of $242,188.26 in distributions.  He sold the property at Suburb P for about
$1.6 million, and after paying out the loan facility he received something like $950,000.  He worked as a general manager in a company, earning about $150,000.  He then purchased a property at V Street, Suburb O, for $1.875 million.  He used the sale proceeds of the Suburb P property, and he took out a mortgage with the National Australia Bank of some $800,000.

14.The first of three tranches, of $200,000 borrowings as Johnston of counsel refers to, of some $200,000 came into existence at this time.  The evidence before me convinces me that the respondent’s father, Mr Kroll Senior, is a man of some wealth.  In 2009, according to Mr Z, who is the respondent’s brother, and is a chartered accountant, and is responsible for the affairs of Mr Kroll Senior, he now having no testamentary capacity and is suffering, as it appears, from reasonably advanced Parkinson’s disease, and is at home, indicated that he believed he was worth about $11 million.  I have before me a list of assets and liabilities, and it is this list of assets and liabilities that I have come to the conclusion that he is a man of considerable wealth, together with a subsequent one which was exhibit 7, which shows that he is worth something in excess of $9 million.  It is quite clear on the evidence that the respondent is a beneficiary of his father’s estate, as is his brother, the Mr Z to whom I have already referred, and his sister, Ms U, who does not figure at all in this case.

15.In 2004 or thereabouts, the respondent sought from Mr Z, who has managed his father’s affairs for some 10 years, and is his attorney, some $200,000.  This was advanced, and as appears in the evidence of Mr Z in his affidavit filed 7 March 2012, it was advanced, and he was of the view that such advance was not a loan, notwithstanding the present respondent’s view that he has a moral obligation to pay this amount.  I am more than satisfied that it is not a loan, but that it is a gift, and I refer to the affidavit of Mr Z, particularly in paragraphs 5 to 9 inclusive thereof.  This is, as I said, the first of three. 

16.It appears that the husband had entered into some form of contract with a company known as X Pty Ltd, in about 2007, and that he appears to have left there about 12 months later.  But subsequently he commenced proceedings in the District Court against this company, and received a successful judgment in his favour to the extent of some $750,000. 

17.Up until that stage it may be clear that the husband has put into the marriage the initial sum of the house, which was converted into money, selling the Suburb P house, that is, the first house, I believe, for $449,000.  He put in $395,000.  He then put in $130,000 from A Pty Ltd.  He put in $240,000 from L Pty Ltd, to which I have herein before referred, and received an amount of some $900-odd thousand dollars from the C Street property at Suburb P.   He received $200,000 from his father’s estate, and as well as some $750,000 from his successful action in the District Court.  It cannot be said by the applicant that he has other than put in an enormous amount of money into this marriage, into the acquirement of the assets of the parties, or either of them.  All of these properties which he has purchased, I make quite clear, were purchased in his own name.  

18.It is primarily as a result of that, that counsel for the respondent indicates that there should be a very heavy weighting in favour of the husband on section 92.  He goes as far as to say the wife’s contribution could only be between 10 to 15 per cent. 

19.That, of course, is not the end of the matter.  Subsequent to that first $200,000, a second one was sought by the respondent, and this was once again advanced by Mr Z, but as far as I am concerned, he considered that it was in fact a loan from the estate of his father to Mr Kroll, the respondent, and consequently he said that he expects it to be repaid, although there is no pressure being brought to bear upon the respondent for the repayment of such.  There is one final amount, and that is the $200,000 which he sought from the estate once again in late 2011, which he sought to be able to pay his costs and also other orders which to comply with orders made by this court. 

20.It has been said by Gould of counsel for the applicant that notwithstanding I may be persuaded – I am not persuaded the first $200,000 is owing as a legal debt by the respondent.  Morally, he may owe it.  Legally, he does not, and it is not a matter which I will take into consideration as a debt of the parties or either of them.  Insofar as the second is concerned, I am satisfied that that is a debt.  The trustee, if I may put it – the attorney for the father has indicated some little degree of irritation in relation to the failure of the payment of the debt, and I refer to the emails which are exhibited to Mr Z’s affidavit. 

21.The third of which is also a debt.  It has been put forward, as I was going to say, by Gould of counsel, that notwithstanding I may be against him in saying these are not debts, and that I should not look upon them as such.  He refers me to Biltoft and indicates that the court has a very wide discretion in acknowledging debts and indicating whether in their view they believe that this debt is, shall we say, imminently repayable or even reasonably repayable. 

22.The estate of the father – the grandfather is large.  It is quite clear on the evidence before me that the parties are being allowed by Mr Z, the attorney, to take advantage of such estate, and I am not for one moment criticising Mr Z.  I think he is doing a remarkably good job.  He is keeping very accurate records.  He is showing that the grandfather is costing something in excess of $100,000 per year to be properly looked after in a home which I understand none of the parties have any complaint about.  And it appears on the material before me that as a direct result of those expenses, the somewhat large superannuation fund which the grandfather had has been diminished.  Not to any great extent, and it has been readily conceded by Mr Z that there is more than adequate funds in the estate to properly look after the father for a considerable period. 

23.But we get back to the question, is this the type of debt that is going to be insisted on being repaid?  I am more than satisfied on the evidence before me that it is not.  It is a debt – that is the $400,000.  Not the $600,000 the $400,000.  It is a debt, but I do not consider that I should take it into consideration at this stage as being a debt directly and imminently payable.  I am supported in that view by the questions put by Gould of counsel to Mr Z that, in effect, this matter will be considered upon the death of the father, to which quite properly, Johnston of counsel pointed out that he said, “That’s a good idea”.  He did not accept, clearly, that that would be the case, but I think it is more the case in this case than it is in others.  The brothers and sister appear to be reasonably close, and they can even lose a baby grand and not be particularly concerned about it, as I understand, this disappearing from the grandfather’s unit. 

24.Insofar as the third of the tranches are concerned, I am satisfied that it is a debt.  I think it is a debt which I should take into consideration since it was used for the payment of costs, and will of course be – and such costs which were paid, and they are particularised in the balance sheet – which I understand the contents of which are in agreement, but there are some disputes as to the valuation – appears at item 28 of that list, which shows that it amounts to $189,713. 

25.The wife also has put a claim before me for periodic maintenance for a period of two years.  She indicates that she is at this stage unable to seek adequate gainful employment.  She has endeavoured to do so, it says, as a result of – my word – harassment by the respondent, and the imminence of this application, that she was unable to concentrate on the last job she had with a retailer for some two weeks, she resigned. 

26.It appears that the type of job she is looking for will not give her any more than 18 to 20 dollars per hour, and that in itself is not a very large amount, since she is paying some $750 per week as and by of accommodation for herself and the two children.  It is not that she can have accommodation for eight nights for herself and the two children and then for the six nights, just for herself, and she is living in the Suburb O area which, I think is conceded by counsel, who are more au fait with the costs of Sydney than I am, it is rather one of the more expensive areas of Sydney in which to live. 

27.There is dispute – I am now looking at the balance sheet, which is exhibit 10 which has been put before me by the parties.  There are disputes in particular in three.  There is item 6, item 7, item 11, item 12 and 13, initially.  Insofar as 6 is concerned, it appears that the mother, according to the respondent, took certain items from the household.  She alleges that she took very little, and that matter, those items in the household have not been valued, and I think that there is much of what has been suggested that there should be a list prepared by both parties and the so-called “pick a pile” take place.  I know it is suggested in this case that the father prepare the list, and I will be making an order accordingly. 

28.The artworks.  This, in particular, is an Artist 1 and an Artist 2 painting.  It is quite clear on the evidence before me, and that fall particularly from Mr Kroll – from Mr Z, that these are his father’s paintings.  That at the time that they were cleaning out his flat in Suburb O, I think it was in the year 2008, there was a discussion about the paintings, and from the respondent, it fell that Mr Z did not like one of them in particular, so he took two and Mr Z took the other.  These paintings are still in the house of the – the house in dispute, and it is alleged by the mother that these are in fact the father’s because she relies upon the evidence of a statement made to him when seeking a bank loan, in which he indicated that the paintings were his.  He concedes that, in fact, he told a fib.  That they are not, that they are the father’s. 

29.Notwithstanding, someone may suggest this could fall into the same category as the loans to which I have here and before referred.  That is, that they would not be recovered.  I do not think that the paintings are in the same bracket, and consequently, I will not bring them into account whatsoever, they being the grandfather’s. 

30.Jewellery - much has been made by the father, initially – or the respondent – to the effect that he believed the jewellery I think was worth some $30,000.  There has been no attempt at valuation.  There has been no attempt at particularisation.  The court is left in the invidious position of either accepting what the wife says, of $2500, or preparing two lists.  I do not think either of them are of any assistance to the court, but I will accept, in these circumstances, since no effort has been made, that a figure must be put upon them, and that is the $2500. 

31.The household contents.  The household contents taken from the Suburb O house will of course be involved in the two lists to which I have referred in paragraph 6, so I need not make any determination about them.  There is an allegation that the wife has purchased since separation – and I think there partially is a direct order of the court that she have moneys to expend.  And I think it was some $6000 in total.  As has fallen from Gould, a $6000 purchase price for furniture is worth no where near what they are now worth as second hand furniture, and I would accept the contents of the wife at $2000. 

32.The final contention is on behalf of the respondent, that notwithstanding he is a one third beneficiary in the estate of his father, that I could not put any figure upon it, either as an item of property or as an item of a financial resource.  I think not.  It is quite clear on the material before me that this gentleman will, at some time or other, and probably – and I say probably regrettably, because the grandfather has suffered from Parkinson’s for 10 years. 

33.He lacks testamentary capacity.  He has – is able to walk, I understand, with difficulty with a four-pointer.  He has only in the last two months been able to discuss anything with his son Mr Z on one occasion for the first time, I think it was, for seven years.  I must say that notwithstanding there is no evidence before me as to his longevity, that he appears to be quite an ill man, and that this – the respondent will be entitled to one third of an estate which I am able to say at this stage is worth about $9 million, and it is being diminished at something in excess of $100,000 per year.  See the statement set out to Mr Z’s affidavit. 

34.But that such diminution is being offset by interest and returns from the properties to which Mr Z has replied.  There was ….. an endeavour to sell a property which the grandfather owned for $3 million.  This has failed, although there is an offer made to Mr Z which he has rejected of some $2.6 million.  I am more than satisfied that he has a substantial financial resource there, and that that would perhaps sound ….. more in 75(2) than it does otherwise. 

35.What are we left with insofar as 79 is concerned?  We are left with, as far as I can say it, a young man who has put a considerable amount of money into this marriage, and unfortunately, the results do not show how much he has put in.  This has been brought about as a result, I understand, of his endeavouring to renovate the property at Suburb O, which blew out tremendously.  It has cost him, I think, at least $1.2 million for renovations alone, and as a result thereof, the amounts of money which he has put in have been eaten away by builder’s and architect’s fees.  He has by far, as I have said before, put more money into this property than the mother has, and I do not think it has been suggested by counsel for the mother that he has other than done that. 

36.What does that mean insofar as 79(2) is concerned?  For many years, it has been an endeavour on the part of the hierarchy of this court to indicate that it is necessary to start off at fifty-fifty.  That was hit on the head by Mallet, a case in which I was interested in some many years ago, it is now a matter of discretion for this court.  In weighing the matters, I cannot but say that I am satisfied that there must be a substantial weighting in favour of the father on 79(2), and doing the best I can, I cannot accept his 10 to 15 per cent, because the mother has assisted in the house.  She has done the best she can by the children.  She has, I would have thought, acted as a hostess for him.  She has, if not cooked all the meals, the greater majority of the meals, and I do believe that 10 to 15 per cent is not an adequate recognition of her contributions to the acquisition and conservation, etcetera, as set out under the Act under section 79.

37.Doing the best I can, I consider that she would be entitled to 30 per cent.  But that is not the end of the matter.  There are the 75(2) factors, which have been recognised by both experienced counsel before me.  She is in a difficult position.  As I have said before, she has little or no training.  She has no qualifications.  She has no profession.  She will seek what could be classed as office-type work, which I think the maximum was put at between $40,000 to $50,000 per year, and that probably is with some training. 

38.The father, on the other hand, as I have already indicated, is in a solid, established job.  He is earning at least $250,000 plus bonuses going as high as $140,000.  And consequently, he is in a much more substantial financial position, income wise, than the wife.  But he points to his affidavit at paragraph – commencing at paragraph 98 showing his monthly expenses.  They are enormous.  He has estimated them there, and they add up to $21,336 – and I like the 40 cents – per month.  He cannot continue doing that, because he is not earning enough, I would have thought, to adequately cover that. 

39.I have referred to 98.1 – the mortgage payments.  He is paying $9000 per month mortgage instalments.  That is an enormous amount of money, particularly in a person who is earning, so we say, $300,000 per year gross.  He cannot maintain that, even if, in fact, he was not going to be – as is going to be ordered – to pay periodic maintenance for a short period.  He has to sell that house or seek some other form of funds from some other source.  It may be, as Gould has intimated, he may be able to seek it from his father’s estate, or no.  I do not know.  But I do know that he cannot maintain this house at that rate. 

40.I am concerned about other matters.  He expends $5000 per year on gardening and lawn mowing.  He does state the garden is rather large, but I would have thought a man who has shown such interest in his property might be able to do it himself, even if the kids were with him.

41.Private medical insurance – I am just referring to these matters.  Car and bike -he saw fit, subsequent, I think, to separation, to purchase a Harley Davidson motorcycle for some $14,000.  I do not criticise his taste, but I do criticise the fact that he purchased it, when at a stage, he said, he was in financial trouble. 

42.There are other matters which intrigue me.  Holidays – they do not know whether they are for him alone – $6000 per year.  Medical, dental and optical, not including premiums – $7200 a year. 

43.Whilst, quite properly, Johnston says that these were not attacked.  I think a court is entitled to criticise that if they do not consider they are just and reasonable in all the circumstances.  I am saying that because the prime defence – for they use the word “defence” – of Johnston in relation to the periodic maintenance is that there’s no capacity on his client to pay it.

44.If the property is sold, it would mean that he has advanced by $9000 per month straight off.  That is more – much more – than what the wife is seeking of some $1300 per week, which is about $5200, or perhaps even more – say $5500 per month, to enable her to manage herself for a period of two years.  I must say that I am more than satisfied that he has the capacity to pay. 

45.Is the amount of $1300 maintainable on the evidence before me?  I think it is, but one of the reasons why it is, is because of the amount which she is paying for accommodation of some $750 per week.  She, herself, has got to look at that.  She has got to get out of that area, and get into an area which is much more reasonable.  I do not know what reasonable expenses would be expected, but I would think less than $750 per week. 

46.I am more satisfied that questions of maintenance are in the pure discretion of the court, but I have to find whether the husband had a capacity to pay.  I find that he has.  How much?  I think that the $1300 as sought by the wife, notwithstanding she has set out in her affidavit, I think it is under $1610, that $1300, for a period of two years, is reasonable in the circumstances, and I will be ordering that.

47.What, then, have we got to?  We now get to an endeavour to ascertain what the assets of the party are.

48.According to my notoriously inaccurate maths, and I would be asking counsel to watch this, my assets, including the superannuation, come to $3,352,383.  You will notice that I have deleted the $600,000;  that I have deleted the $70,000 artworks.  I think there may be others.

49.The liabilities - $2 million – 2,014,701, which according to my, once again, maths, gives a net assets of $1,347,682.  I have indicated that there is a weighting in favour of the husband of some 70 per cent insofar as the 79(2) factors are concerned.  I have not, at this stage, indicated what my view is in relation to the percentage for 75(2).  It has been conceded, quite properly, may I say, by Johnston of counsel for the father, that the wife is entitled to a weighting in favour of her.  He suggests 15 per cent.  I must say that I agonised between 15 per cent and 20 per cent, but having considered the mother who will do her very best in getting a job for herself which will be able to at least maintain her to a certain extent, I would define that her entitlement is 15 per cent.  In those circumstances, I consider that she is entitled to an amount of 45 per cent of the net assets of the parties, which, once again, according to my mathematics come to the figure of $606,456.95 rounded off at $457.

50.The wife has in her possession the car, some bank accounts, the jewellery and the after separation contents of $2000 of $40,769. 

51.This will bring the net judgment down to $565,688.  There is the superannuation, which nowadays is not a financial resource but is, in fact, property, and it is referred to in the statement of assets and liabilities – the balance sheet.  I don’t know if I have referred to it before.

52.An order is sought by the wife that she be entitled to a splitting in the range of 44 per cent – I think that’s correct, is it not, Mr Gould?  The figure is capitalised, there, at some 50,000.  I am not going to do any mathematics and find out what the difference is between 44 per cent and 45 per cent, and I would order that part of the judgment be satisfied by a splitting in the figure of $50,000.

53.That would leave, around about, gentlemen – that would leave the wife’s judgment to be in the figure of $515,000.

54.I will call upon the applicant to put before me his draft order as modified in accordance with my reasons.

55.Anything further gentlemen?  Take your time.  You can always come back to me.  I am still here until Friday.

R  RECORDED  ;  NOT TRANSCRIBED

56.There is one thing that I overlooked.  There was an amount of some $79,000 which was allegedly received by the wife in relation to working for a property.  It is quite clear on the evidence before me that she did not.  She was not working;  that, in effect, she was entitled.  It was an endeavour on the part of the respondent to income-split;  that taxation has been paid – I think a PAYE taxation was paid, and it appears on the material put before me that the wife is at no risk whatsoever.  I do not know how you could look upon that?  Whether it is a contribution by the wife or a contribution by the husband.  However, I have taken it into consideration.

57.The assets, Mr Johnston, according to my figures – $3,352,383.  Liabilities – $2,014,701.  Available – $1,347,682.  45 per cent – blame the calculator;  not me.  Looks like I am wrong anyway.  No, my associate is correct.  It should be $1,337.  That will modify it to a certain extent, but not to any great extent. 

RECORDED  :  NOT TRANSCRIBED

58.$601,956.9 rounded off at $957, then it will be less $40,769 – $561,187, and then the $50,000 of the superannuation will bring it down to $511,187 – well, just deduct that $50,000 – it is an odd figure, Mr Gould.  It is not a straight $50,000 – it is in your – it is $50,85 – it is already – $52, is it?  Yes, that’s right – $50,282, which is 44 per cent, as I have said, which is close enough.

59.And the orders will be that that amount be paid within three months of today, and if it is not paid, the property be offered for sale privately for a period of one month, at a reserve of $3 million. 

60.Should that be unsuccessful, at a reserve to be estimated by the president of the Real Institute of New South Wales or his nominee, and then to be sold by public auction.

61.Insofar as the periodic maintenance is concerned of $1300, first payment to be next Monday, and thereafter, fortnightly or monthly – which, Mr Gould?  Fortnightly.  Thank you.  Do we pay it to the solicitors for the applicant, or do you pay it directly – in the drafting of the orders there will be a bank account number given.

62.Thank you.  Is there anything further, gentlemen?  Mr Johnston, you are still on your feet.

RECORDED:  NOT TRANSCRIBED

63.I will reserve the question of costs.         

RECORDED:  NOT TRANSCRIBED

64.The wife’s jewellery is to be given an attribution of value to $2500 but otherwise remains with her, and the Suburb O contents, whether they be those removed by the wife or those retained by the husband are to be listed in the system – wife choose.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 27 March 2012.

Associate: 

Date:  27 March 2012