Lockie and Lockie
[2009] FamCA 656
•28 July 2009
FAMILY COURT OF AUSTRALIA
| LOCKIE & LOCKIE | [2009] FamCA 656 |
| FAMILY LAW – PROPERTY – Section 75(2) – Initial contributions of the parties – Assets allegedly held on trust for the child of the marriage – Wife’s contribution to the earning capacity of the husband – Payments made by husband to his former wife and child – Future costs of care of the child – Whether husband’s de facto constitutes a financial resource |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Lockie |
| RESPONDENT: | Ms Lockie |
| FILE NUMBER: | SYF | 2311 | of | 2004 |
| DATE DELIVERED: | 28 July 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 10 to 14 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC with Mr Gramelis |
| SOLICITOR FOR THE APPLICANT: | John M Barbouttis |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
Orders
The parties are to forthwith do all things necessary to transfer to the husband the Credit Agricole Luxembourg bank account (standing at $236,489 on the balance sheet) being the account in the name of the parties’ child and being held in Fixed Yield Deposit Account number … in Credit Agricole Luxembourg.
Within two calendar months from the date hereof the wife is to pay the husband the sum of $480,607.
In the event of the wife failing to make the payment to the husband as required by Order 2 hereof then forthwith upon the occurrence of such failure the parties are to jointly sell the property at E Road, northern Sydney (“the [E] Road property”) through an agreed real estate agent and at an agreed sale price. The parties are to jointly appoint a solicitor or conveyancing firm to act for them on the sale. The parties are to ensure that the solicitor or conveyancer acting on the sale is provided with a copy of these orders. Each party has liberty to apply for further orders implementing the order for sale.
Upon a sale being effected of the E Road property the parties are to cause the sale proceeds to be paid as follows:
(i)Payment of sale expenses;
(ii)discharge of the mortgage;
(iii)payment to the husband of 83.5% of the balance then remaining;
(iv)The balance thereafter to the husband.
Each party has liberty to apply to seek further orders necessary to implement these orders.
The wife is to cause to be delivered to the husband at H Street, northern Sydney (“the [H] Street property”) all his furniture and personal items which were acquired by the husband prior to the cohabitation. Thereafter the balance of the contents of the property is to be the wife’s.
Each party otherwise be declared the absolute owner of any asset, resource, and superannuation in their possession and control standing in that party’s name.
IT IS NOTED that publication of this judgment under the pseudonym Lockie & Lockie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2311 of 2004
| MR LOCKIE |
Applicant
And
| MS LOCKIE |
Respondent
REASONS FOR JUDGMENT
Introduction
1.The applicant husband and the respondent wife cohabited for about 14 years. They did, by any measure, live an exciting and comfortable life largely arising as a consequence of the husband’s employment as an international company executive. They travelled to many countries. Whenever they travelled it was first or business class. They always stayed in 4 or 5 star hotels.
2.The parties have one child and they had been in dispute about the orders relating to that child until a day or so before the trial when, with the assistance of the Independent Children’s Lawyer, they were able to reach an agreement. Their child was 14 years of age at trial and has had significant health issues. She has now just turned 15.
3.Both parties have created bank accounts which they claim contain monies for the child. The wife has refused to use any of her funds in the Australian bank accounts (said to be held in trust for the child) to pay the child’s school fees whilst at the same time requesting the husband to pay the child’s school fees from the account the parties hold for the child in a Luxembourg bank. The husband opposes the child attending a private school on the basis that the parties cannot afford to pay private school fees. The husband voluntarily pays child support for the child in the sum of about $900 per month.
4.This case has taken much more judicial management to have it reach a stage where it is ready to be allocated a hearing date than most cases of the same complexity. The record shows that on 16 December 2005 a direction was made by Registrar Cameron requiring both parties to file their affidavit evidence by 20 February 2006. The husband complied with that direction. Further directions were made on 22 February 2006, 31 May 2006, 16 June 2006, 18 July 2006, 13 October 2006 and 23 November 2006. On each occasion a direction was made either specifically for the wife to file her evidence in chief or alternatively, for both parties to file affidavit evidence. On 12 January 2007 the matter was again in a “Defaulters List” and was transferred to my list as I was, at that time, the Case Management Judge. Directions were made by me on 19 January 2007, 1 March 2007, 5 April 2007, 5 June 2007, 27 June 2007, 18 July 2007 and on 11 September 2007. On each of those occasions (other than the last date), an order was made for the wife to file her affidavit evidence. Other orders were made on those occasions which were necessary to obtain relevant evidence either in relation to the children’s matter or the property matter. On 11 September 2007 I noted the wife had still not filed her affidavit evidence. The matter was before me again on 22 November 2007. The wife had not filed her evidence. The matter was adjourned to 17 December 2007 for possible hearing as an undefended hearing. On that day (17 December 2007) the wife filed her affidavit and Financial Statement. The matter came before me on 21 May 2008. I had no hearing dates to allocate to the case within a three month period from that date. As a special event I reserved for the parties five days of hearing time before me commencing on 10 November 2008. On 21 May, 18 August and 20 October 2008 I made directions designed to have the matter ready to commence a hearing on 10 November 2008. The directions made on 18 August 2008 provided for the parties to be able to issue subpoenas returnable at a time prior to the commencement of the hearing.
5.Notwithstanding the very precise directions having been made, the wife chose to issue a subpoena to Ms A, the husband’s partner, on 30 October 2008 and returnable on the first day of the trial. The intention of my making directions for the issue of subpoena on 18 August 2008 was to ensure that all subpoena issues were determined before the trial commenced. That did not happen and during the course of the hearing I was required to determine the question of the requirement for Ms A to answer the subpoena which had been issued against her but not served upon her. The issue of Ms A being a resource in the husband’s financial circumstances had been known by the wife for many months before she issued the subpoena. As it was, Ms A was a witness in the case and was available for cross-examination.
6.The parties asked me to make the following orders by consent prior to the trial:
Short Minute of Orders
1.That the Mother and the Father have equal shared parental responsibility for the child of the marriage […] born […] July 1994 (‘[the child]’).
2. That [the child] shall live with the Mother.
3.That [the child] shall spend significant and substantial time with the Father as follows:
(a) During school term:
On alternate weekends from the conclusion of school on Thursday until the commencement of school on Monday, or Tuesday in the event of a long weekend or pupil free day. On these weekends the Father shall ensure that [the child] does not spend more than two hours each way travelling in a motor vehicle.
(b) School holidays and other special occasions:
For half of each of the midyear school holidays, the first half in odd years, and thereafter in alternate years, the second half in even years and thereafter in alternate years.
(c)For two separate two-week periods in each year during the December/January school holidays, by agreement, and failing such agreement:
1.the last two weeks in each December and each January commencing in even numbered years; and
2.the first two weeks in each December and each January commencing in odd numbered years.
(d)On Father’s Day each year if [the child] is not ordinarily with the Father, from 9.00 am on Father’s Day until the commencement of school or 9.00 am the following day.
(e)On [the child’s] birthday each year as agreed, otherwise from 10.00 am to 3.00 pm.
(f)On 17 November 2007 and on 1 November 2007 as agreed; failing agreement, if a school day, from the conclusion of school until 8 30 pm; if not a school day from 10 am until 9 pm.
(g)On the Father’s birthday, the […] by agreement, failing agreement from 10.00 am until 3.00 pm.
(h) At other times as agreed.
(i)In respect of Christmas Day [the child] shall spend time with the mother and the father as follows:
1.with the mother from 3.00 pm on 24 December until 3.00 pm on 25 December in even numbered years; and
2.with the father from 3.00 pm on 24 December until 3.00 pm on 25 December in odd numbered years.
4.Paragraph 3 of these Orders shall be suspended at the following times:
(a)On Mother’s Day when [the child] shall be with the Mother from 9.00 am until the commencement of school or 9.00 am the following day; and
(b)On […], the Mother’s birthday when [the child] shall be with her Mother from 9.00 am until 3.00 pm.
5.The Father shall facilitate [the child’s] attendance at reasonable social and extra-curricular activities that take place at those times that [the child] is in his care.
6. NOTE:
(i)The Father agrees to facilitate arrangements for [the child’s] friends to attend at his home at those times that [the child] is present.
(ii)The Father shall be at liberty to take [the child] to his home at [coastal New South Wales] when [the child] is spending time with him during school holidays.
7.The mother shall have responsibility for making decisions about non-long term issues in relation to [the child] whilst [the child] is in her care.
8.The father shall have responsibility for making decisions about non-long term issues in relation to [the child] whilst [the child] is in his care.
9.Each of the parties shall have liberal telephone and any other electronic form of contact with [the child] whilst she is in the care of the other parent.
10.In the event that either party proposes to take [the child] overseas, they shall provide the other party with a copy of their itinerary and with an appropriate contact telephone number 7 days prior to such trip commencing; at these times the child shall be accompanied by the parent with whom she is travelling.
11.Neither party shall denigrate the other party nor any member of the other party’s family in the presence or hearing of [the child] and they shall use their best endeavours to ensure that no other person does so.
12.The parties shall communicate with each other in relation to any changes to these Orders by email and they shall use their best endeavours to be courteous to the other party during the course of such communication. The parties agree that [the child] is not to be involved in these negotiations.
13.The parties shall continue with the family therapy that has been arranged through the Royal North Shore Hospital and they shall continue to so attend for as long as [the child’s] therapist deems it appropriate.
14.Each party shall administer any medical treatment or other medication as may be prescribed for [the child] from time to time.
15.Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning [the child].
16.The Father shall provide at least 48 hours notice to the mother in the event that he is unable to spend time with [the child] in accordance with these Orders during school term and otherwise with at least seven (7) days notice.
17.The Father shall collect [the child] at the commencement of each period when she is to spend time with him in accordance with these Orders and the mother shall collect [the child] at the conclusion of each such period, provided the Father shall take [the child] to school if such period concludes at the commencement of school and the Father shall collect and return [the child] if she is to spend time with him other than at his apartment in [Sydney].
18.That the parties contribute equally to the costs of the Independent Children's Lawyer herein such costs being $1,650 per party and to be paid within 28 days of the date of these Orders.
19.That the appointments of the Independent Children’s Lawyer continue for a period of 12 months from the date of the making of these Orders.
The Orders Sought by Each Party
7.The husband moved on his Amended Application for Final Orders filed 9 February 2007. The husband sought the wife pay him $900,000 and that he receive the funds in the account held at Credit Lyonnais, account number … and held in the child’s name (“the Luxembourg account”). He sought that the Australian properties be retained by the wife together with all of the funds held for the child in Australian bank accounts and shares.
8.The wife relied on her Amended Response to an Application for Final Orders filed 5 August 2007. She sought that each party be declared the owner of property standing in their sole names. The exception was that the wife said the husband was to receive items of furniture which were his prior to cohabitation.
The Issues
9.On the second day of the trial the parties tendered the following document which was marked as Exhibit X2. They had provided another version of this document on the first day of the trial; however, I required further detail.
ISSUES OF FACT TO BE DETERMINED BY TRIAL JUDGE IN RELATION TO THE FINANCIAL MATTERS
Pursuant to Order 6 of the Orders of Justice Le Poer Trench made on 20 October 2008 (“the Orders”), the parties set out hereunder a list of issues of fact to be determined by the Trial Judge in relation to the financial matters:
1. Date of commencement of cohabitation and date of final separation.
2.Initial contributions – values of assets, extent of liabilities, wife’s motor vehicles, and husband’s bank savings.
3.Extent of homemaking and parenting contributions of each party, and wife's contributions to the management of finances.
4.Extent of wife's contribution to husband's earning capacity and support for him in his career at [Z International Company].
5. Incomes of the parties during the marriage and after separation.
6.Source and ownership of assets in [the child’s] name and assets allegedly held by wife and or husband on trust for [the child].
7.Whether the parties were “separated” between July 1994 and December 1996.
8.Disposition of funds by Husband post separation and the extent of funds presently held by him in bank accounts and disposition of funds by Wife post separation.
9.Payments made by husband to or for the benefit of [R Lockie] and [H Lockie].
10.Extent of payments made by the husband to maintain the French properties during cohabitation.
11.Extent of past and future care and financial support of [the child] after separation.
12. Husband’s bank savings at separation.
13. Extent of husband’s investments at separation.
14. The health of the parties and the Wife’s capacity to work.
15.The husband’s absences from Australia, both during the marriage and subsequent to separation and the source of funds for those trips and the source of funds relied on by the husband during those trips.
16.The assets, liabilities and resources of the husband’s de facto partner, [Ms A], and the extent to which the husband has contributed to same and/or the extent to which Ms [A’s] assets, liabilities and resources constitute a financial resource to the husband.
17.The funds required by the wife to provide her with an appropriate level of income to meet her expenses and the payment of expenses for [the child] including her private school fees.
18.Whether notwithstanding the husband’s payment of child support at the appropriate rate under the legislation, the cost of care is a relevant factor for consideration.
Background Facts
10.On 10 November 2008 the parties tendered a document which was marked as Exhibit X1. I here incorporate that document:
AGREED CHRONOLOGY OF NON-CONTENTIOUS FACTS
The paragraph and Exhibit numbers are for reference only and do not indicate an agreement as to all the facts therein.
Date Event Source […] 1941 Husband born in France. Presently 67 years of age Affidavit of [the husband] sworn 19 February 2006 and filed 20 February 2006 (“Husband’s Affidavit”) at paragraph 2 […] 1954 Wife born […]. Presently 54 years of age Husband’s Affidavit at paragraph 3 22 December 1966 Husband obtains employment with subsidiary of [Z Company] Husband’s Affidavit at paragraph 6 Husband purchases Porsche coupe, garaged in France Husband’s Affidavit at paragraph 15 (d) and Exhibit 4
Paragraph 26 of wife’s Affidavit sworn 17 December 2007
Husband purchases real property in […] called “[the Island property]” Husband’s Affidavit at paragraph 15 (a)
Paragraph 26 of wife’s Affidavit sworn 17 December 2007
1971 Husband promoted to General Manager for [Z Company, Country A] Husband’s Affidavit at paragraph 6 […] December 1971 Husband marries former wife, [R Lockie] in [the Island]
Husband’s Affidavit at paragraph 7 28 December 1972
Husband purchases [L] property in France jointly with [R Lockie]. A third part of the property was purchased in 1984.
Husband’s Affidavit at paragraph 15 (e) and Exhibit 5
Paragraph 26 and 35 of wife’s Affidavit sworn 17 December 2007
1976 Husband appointed General Manager for [Z Company, Country B] Husband’s Affidavit at paragraph 6 1976 Husband meets Wife in Japan for first time Husband’s Affidavit at paragraph 8 […] November 1978 [H Lockie] born out of marriage with [R]. Presently 29 years of age
Husband’s Affidavit at paragraph 7
1980
Husband inherits an interest in [E] and [C] properties in France on father’s death subject to a “userfracht”. Husband’s Affidavit at paragraph 15 (c) and Exhibit RGL 3 1983
Husband meets Wife again by chance in Sydney. Between 1983 and 1985 Husband spends brief interludes with Wife and travel on holidays Husband’s Affidavit at paragraphs 8 and 20 1985 Husband appointed General Manager [Z Company] for Australia Husband’s Affidavit at paragraph 6 1985
Husband moves to Sydney with [R] and daughter, [H] Husband’s Affidavit at paragraph 7 28 April to 27 July 1985
Husband separates from [R] to reside in rented accommodation with Wife [in northern Sydney] paid for by Husband. Husband’s Affidavit at paragraph 21 1986 Husband opens account for [H] with Société Generale in Paris Husband’s Affidavit at paragraph 32 1987
Husband creates [T] Trust
Husband’s Affidavit at paragraph 15 (b) and Exhibit RGL 2 1987
Husband owned furniture and other personal items Husband’s Affidavit at paragraph 15 (i) 1987
Parties purchase [N Street, inner Sydney] property for $120,500 in Wife’s name but holds 50% on trust for Husband. Husband contributed $25,250 and wife borrowed $70,000. Husband’s Affidavit at paragraph 22 and
Exhibit RGL 7
1988 Husband appointed General Manager for [Z Company] France Husband’s Affidavit at paragraph 6 1988 Husband and Wife move to […], France Husband’s Affidavit at paragraph 4 1989
Opening of joint account with Société Generale Husband’s Affidavit at paragraph 25 31 October 1988 to 1997
[N Street] apartment tenanted.
Husband’s Affidavit at paragraphs 29, 30 and 31 and Exhibits RGL 8, 9 and 10 April 1989
Husband changes beneficiaries to [T] Trust Husband’s Affidavit at paragraph 35 and 31 and Exhibit RGL 12 28 March1990 Husband Divorces [R].
Husband’s Affidavit at paragraphs 10, 38, 39, 40 and 41 and Exhibit RGL 15 1990
Husband sells [the Island property] for approx […] (Aus $183,790.00). Proceeds of Sale placed in [T] Trust Husband’s Affidavit at paragraph 15 (a) and (b) and Exhibit RGL 1 2 July 1990
Husband causes proceeds of sale of [Island property] to be transferred from [Island bank] to joint account at Société Generale in London Husband’s Affidavit at paragraph 42 and
Exhibit RGL 16
[…] October 1990 Husband marries Wife in Sydney
Husband’s Affidavit at paragraphs 11 and 43 March 1991
Husband suffers injury to back at work Husband’s Affidavit at paragraphs 45 and 151 and Exhibit RGL 17 January 1992 Husband transferred to Paris following [merger of Z Company and Z International] Husband’s Affidavit at paragraphs 46 and 47 October 1992
Husband transfers proceeds of [Island property] to [T] Trust Husband’s Affidavit at paragraph 48 1993
[R] commences enforcement proceedings against Husband in France. Husband’s Affidavit at paragraphs 49 and 50 and Exhibit RGL 18a and 18b 30 June 1993
Husband causes [T] Trust to open account with Société Generale in London
Husband’s Affidavit at paragraphs 54 and
Exhibit RGL 20
1995 Husband promoted to Vice President [Z Company] Husband’s Affidavit at paragraph 6 […] July 1994 [Parties’ child] born in Sydney out of marriage to Wife. Wife diagnosed with diabetes and remains in Sydney. Husband resided in France until December 1996 but visited regularly and provided monthly financial support. Husband’s Affidavit at paragraphs 12, 58, 59, 60 and 61 1 December 1994
Husband causes [H’s] beneficial interest in [T] Trust to be split equally with [the parties’ child]. Wife beneficiary as to balance Husband’s Affidavit at paragraph 63 and
Exhibit RGL 25
6 June 1995
Husband uses [T] Trust funds to discharge mortgage on [N Street] property
Husband’s Affidavit at paragraphs 68 and 69 and Exhibit RGL 30a and 30b 12 June 1995
Husband executes new Trust Deed for [T] Trust to give effect to earlier changes Husband’s Affidavit at paragraphs 70 and
Exhibit RGL 31
1995
Purchase of shares in UAP
Husband’s Affidavit at paragraphs 66 and
Exhibit RGL 28
20 September 1995
Husband opens two […] Life Assurance Investment Funds with Société Generale. Monthly deposits from Joint Credit Lyonnais account Husband’s Affidavit at paragraphs 71 and
Exhibit RGL 32
December 1995 Wife has car accident, commences litigation and in 1999 receives approx $147,000 in compensation
Husband’s Affidavit at paragraphs 73
Paragraphs 142, 143, 144 and 145 of the wife’s Affidavit sworn 17 December 2007
3 June 1996 Husband conducts inquiry into balance of all accounts held with Société Generale: FF766,346 (Aus$185,970) Husband’s Affidavit at paragraphs 76 and
Exhibit RGL 36
December 1996 Husband returns to live with wife and [child] at father’s home at [northern Sydney]. Paragraph 151 of the wife’s Affidavit sworn 17 December 2007 1997
Husband receives lump sum placed in a Credit Lyonnais joint account Husband’s Affidavit at paragraph 79 (a) and (b) and Exhibit RGL 37 December 1996 to July 2000 For the duration of the marriage neither party is employed
Husband’s Affidavit at paragraph 87 October 1997
Husband transfers FF978,000 (Aus$230,916) to Credit Lyonnais in Luxemburg Husband’s Affidavit at paragraph 93 and
Exhibit RGL 38
1998
[N Street] property sold
Husband’s Affidavit at paragraph 95 (a) May 1998
Parties purchase [H Street] property for $600,000 subject to mortgage to Westpac.
Husband’s Affidavit at paragraphs 94 , 95 (a) and (b), 96, 97 and 98 and
Exhibits RGL 39, 40 and 41
May 1998 Parties establish account in [child’s] name at Credit Lyonnais
Husband’s Affidavit at paragraph 99
Exhibit RGL 42
Paragraph 233 of the wife’s Affidavit sworn 17 December 2007
December 1998 Parties move into [H Street] property Husband’s Affidavit at paragraphs 100, 101, 102, 103 and 104 1998 to 2000
Purchase of Coles Myers shares
Husband’s Affidavit at paragraph 111 2000 Husband opens Westpac account in Australia and obtains MasterCard Husband’s Affidavit at paragraph 123 2000
Following separation Husband pays Wife informal child support of $1,400 per month later reduced to $900 per month Husband’s Affidavit at paragraph 124
31 October 2000 Husband executes new Trust Deed for [T] Trust
Husband’s Affidavit at paragraphs 127 to 128 and Exhibit RGL 48 November 2000 Husband authorises approx. Aus$10,014 to be transferred to Wife’s account from Paris Credit Lyonnais account Husband’s Affidavit at paragraph 130 and
Exhibit RGL 50
April 2001
Husband moves out of [northern Sydney] home Husband’s Affidavit at paragraph 133 March 2001
Husband transfers funds in [P] 1 and 2 to his account with Credit Agricole in [a town in] France (Aus$45,822) Husband’s Affidavit at paragraph 152 and
Exhibit RGL 60
April 2001
Husband purchases shares in French companies for Aus$26785 using [P] 1 and 2 funds. Part of share portfolio Husband’s Affidavit at paragraph 153
[…] August 2002
Wife’s father passes away. Wife inherits father’s interest in [northern Sydney]. Remainder held by her brother. Wife and [parties’ also inherit funds. Wife subsequently purchases brother’s interest as well. Husband’s Affidavit at paragraphs 135, 136 and 143 (b)
Paragraph 197 of the wife’s Affidavit sworn 17 December 2007
December 2002 Husband purchases [U Street] property for $432,000 subject to a borrowing from Westpac Husband’s Affidavit at paragraphs 137 and 138 and Exhibit RGL 55
December 2002
Husband commences relationship with [Ms A] and subsequently moves to [coastal New South Wales] to reside with her but frequently visits Sydney and stays at [U Street] Husband’s Affidavit at paragraph 140
2004 Husband and [Ms A] enter into Cohabitation Agreement Husband’s Affidavit at paragraph 140 23 May 2004 Husband and Wife Divorce Husband’s Affidavit at paragraph 14
The Evidence
Relevant history from the affidavit material
11.The wife says that the parties resided at an apartment of the wife’s friend from 12 October 1986 to 14 November 1986 (paragraph 77 of the wife’s affidavit sworn 17 December 2007). Between 14 November 1986 and 18 February 1987 the parties lived with the wife’s parents at E Road, northern Sydney (“the [E] Road property”) before renting an apartment between 18 February 1987 and May 1987 (paragraphs 78-79 of the wife’s affidavit). I accept that evidence.
12.The parties agree that an apartment at N Street, inner Sydney (“the [N Street] property”) was purchased in about May 1987. It is further agreed that although the N Street property was purchased in the wife’s name she held her interest in the property upon trust for the parties equally. It is agreed that the parties contributed equally (capital contribution) to the purchase. The wife, however, claims an additional contribution which is associated with her employment at the time of the purchase and probably the reason the property was acquired in her name. The wife obtained a preferential mortgage rate from her employer in relation to the loan advanced. The evidence supports that such advance was at a discounted rate. In cross-examination the wife agreed that the rate she paid was 6% whereas the market rate at the time was 16%.
13.In 1998 the parties sold the N Street property for $335,000 and the net proceeds of sale of $300,067 were used to reduce the mortgage on the property at H Street, northern Sydney (“the [H] Street property”) (paragraph 104 of the wife’s affidavit). I accept that evidence.
14.As at the date of final separation, the husband contends that he owned the following property (see paragraph 119 of the husband’s affidavit sworn 19 February 2006 and filed 20 February 2006):
a)The E property in France the subject of the “userfracht” in favour of his mother. The husband estimates as at the date of separation the value of his interest in the property to be around 120,000FF (€18,292 or AUD$29,314);
b)The Porsche coupe purchased from his brother in 1968 that is garaged and in need of a great number of repairs. He says that it has not been properly driven for the last 20 years;
c)A 50% interest in the property known as L property in France (“the [L] property”) which he purchased jointly with his former wife (R Lockie). He says they each still own the property in equal shares but that the buildings on the property are in a state of disrepair;
d)A number of European bank accounts which are either in his sole name or in the joint names of himself and the wife. The husband says that if only half of the total of each of the joint bank accounts is taken as being his funds, his share of the funds in the accounts totalled approximately $188,993 as at separation;
e)As at 1 October 2000 the husband says the value of his investment with the P 1 scheme was approximately €17,913.99 (AUD$29,295) and in the P 2 scheme was approximately €5,691.74 (AUD$9,308);
f)The combined funds in the T Trust which were approximately €1,484.29 (AUD$2,378), 119.13FF (AUD$29.10) and €149,524 (AUD$239,622) and in the Walker Crips account of approximately $3,323;
g)Personal items and furniture and some of the husband’s possessions remained in the possession of the wife.
h)Accumulated points in his pension funds:
a. ARRCO (5075.97 points)
b. AGIRC (85003 points)
c. CRAM and CRAMIF, for which the husband does not provide figures for accumulated points
15.As at the date of separation the husband contends that the wife had the following property (see paragraph 119 of the husband’s affidavit sworn 19 February 2006 and filed 20 February 2006):
a)A Toyota Corolla worth about $10,000;
b)A portion of her parent’s property in northern Sydney which she has subsequently acquired in whole (presumably the E Road property);
c)Superannuation, of which the husband is unclear of the amount;
d)Australian share portfolio
e)Bank accounts in the wife’s sole name, in the child’s name, and held jointly with the husband. He is unclear of the funds in those accounts;
f)An unencumbered property at H Street, northern Sydney, which is in the wife’s sole name;
g)Personal effect and furniture, of an unknown value;
h)Other property of which the husband may not be aware.
16.Although the parties are relatively agreed as to the identity of the assets at the date of separation there is issue as to value and what has happened with some of the investments (chiefly the husband’s) since the separation.
Oral evidence of the husband
17.The husband denied that he currently lives for more than six months of the year in France. Since the separation, in only one year has he lived for more than six months in France.
18.The husband conceded that he may have lived at the E Road property with the wife commencing in July 1985 and until September 1985. He said his memory was not good enough to recall. He thought he and the wife had lived in J Road, northern Sydney in about April 1985. I note there is an agreed fact in Exhibit X1 as follows: “28 April to 27 July 1985 Husband separates from [R Lockie] to reside in rented accommodation with Wife at [northern Sydney] paid for by Husband”
19.The husband agreed he could have moved to an apartment provided by Z Company with his former wife R in September 1985. He further agreed that he could have lived there until October 1986. He was unable to disagree with the proposition that on 10 October 1986 he moved to live with the wife. In other evidence, the husband had contended that cohabitation commenced in February 1987.
20.The husband was shown a copy of his divorce application, filed in the Court in 1990, in relation to the dissolution of his marriage with R. He noted that on page 4 of the document he asserted the date of separation to be 10 October 1986. He further noted that in paragraph 7 on page 4 he had asserted that since 10 October 1986 he had remained separated from R.
21.The husband confirmed that when he lived with the wife at the E Road property in 1987 he did not pay any rent. He agreed it could have been 1987 when he lived with the wife in T Street.
22.He further agreed that in May 1987 he moved to N Street with the wife.
23.In relation to paragraph 15 of his affidavit he was asked what he meant by the phrase “commencement of my relationship”. He agreed that it meant when he commenced to live permanently with the wife in these proceedings.
24.The husband was taken to paragraph 15(g) of his affidavit. He was asked what point of time that paragraph related to and he replied, 1987. He was unable to be any more specific. He agreed that in 1986 and 1987 he bought shares in his former wife’s name. He had paid for the shares; however, they were in his former wife’s name. The shares were acquired largely with borrowed funds. He agreed that in October 1986 he had a debt of $142,703 arising from the purchase of shares. As will be seen later in these reasons, the wife submits that the husband did not establish that the shares which were held in his former wife’s name at the time of the cohabitation were in fact beneficially owned by him. I accept on the totality of the evidence about these shares, their sale and the use of the sale proceeds that the husband did receive the benefit of the sale proceeds when the shares were sold.
25.The husband asserted that at the commencement of his cohabitation with the wife he had one bank account in the Island. He had several bank accounts in France and he had one bank account in the Banque Nationale de Paris in Sydney.
26.The husband was asked questions about paragraph 15(f) of his affidavit. He was asked how he arrived at the estimate of $70,000 as his “total savings” at the date of commencement of cohabitation. He said it was a “guesstimate”.
27.He was asked whether he held a United Overseas Bank (UOB) account. He said he did have such an account at one stage but he could not remember whether the account was operative in 1986 or 1987. He agreed that at one stage he had a bank account with the Banque Nationale de Paris in Singapore. He could not remember any particular details about balances in that account at any particular time.
28.The husband worked for Z Company at the time of commencement of cohabitation. He received a salary package which he conceded included the rent paid on an apartment, electricity and telephone payments in respect of the apartment, and the provision of a motor vehicle. He agreed that the motor vehicle could be used by his family (consisting of his former wife and himself); however, whenever he required the use of the vehicle it was available to him.
29.It was put to the husband that at the time he commenced living with the wife she had two motor vehicles. He agreed that was the case. He denied that he had the use of one of the vehicles on any regular basis.
30.The husband also agreed that there was an entertainment allowance paid by Z Company and it could be used for work related functions.
31.He further agreed that 60 percent of his daughter H’s school fees were paid by Z Company. The child was at a private school in 1986 through to 1988.
32.In addition, the husband agreed Z Company paid medical and dental costs for himself, his former wife and his child H.
33.The husband agreed that a portion of his salary was paid to a joint account in Paris, that joint account being held by himself and his former wife. That arrangement had continued since 1986. After he commenced living with the wife he agreed that he could have deposited 4,000FF a month into an account for his former wife. He further agreed that additionally, he deposited 1,200FF each month to each of the former wife’s and H’s bank accounts in Paris.
34.The husband agreed that during cohabitation with the wife he paid the rental in respect of the T Street property and he also paid the telephone and electricity accounts at the N Street property. The wife in these proceedings met the strata payments on the N Street property.
35.Prior to cohabitation with the respondent wife the husband had purchased the L, France, property. He owned that property with his former wife. Throughout cohabitation with the respondent wife it was necessary to pay monies for the upkeep of that property including council rates and taxes.
36.The husband conceded that at one time he held an account in a bank in Geneva but did not believe he held an account in a Geneva bank at the current time. In relation to the bank account he held with the Banque Nationale de Paris in Singapore he said he had not operated that account for 20 years.
37.The husband was asked about operating an overdraft with the Singapore branch of the Banque Nationale de Paris in the sum of $100,000. He said he did not do that. The husband was asked whether in 1987 he held an account with the Banque Nationale de Paris in Tokyo. He did not think so. He was shown a document dated 7 August 1987 which related to a transfer of money in Japanese yen to the husband’s Australian bank account. In light of this letter the husband conceded that it was most likely he did have an account in Japan at that time. He did not know what the balance of the account was after that deposit and thought it might have been a closing of the account which led to the transfer.
38.The husband was shown a document which evidenced the establishment of an overdraft with the Banque Nationale de Paris in Singapore in the sum of $100,000. He was unable to recall ever drawing on that overdraft.
39.The husband conceded that in October 1986 he had a liability in respect of his Visa credit card of $2,674.
40.The husband did not know of any accounts he held in the Isle of Man or Switzerland. He was able to recall that he held an account in Luxembourg in joint names of himself and the respondent wife, being money held for the child. The husband denied he ever held any monies in an account in Jersey. He was shown a document dated 8 November 2000 which suggested there was an account established in Jersey through the Banque Trans-Atlantique. The husband denied that he had ever deposited any funds in or made any transactions on such an account.
41.The husband was taken to paragraph 13 of his affidavit. He conceded that the final separation was most likely October 2000.
42.The husband was taken to page 22 of his affidavit. On that page the following heading appeared: “As at the date of final separation, I owned the following property”. The husband was asked what date he was referring to when he thereafter set out information about his property. He said October 2000, and having looked at sub-paragraph (e) on that page, said it was probably 1 October 2000.
43.The husband was taken to sub-paragraph (d) on page 22 of his affidavit. He said the account he held with Societe Generale Bank was an account in his sole name. He said the accounts he held with Credit Lyonnais in Paris was a joint account he held with the respondent wife and that he may have also held another account in his sole name. He also thought there may have been two other accounts, one being a savings account in his sole name and a savings account in the wife’s sole name.
44.The husband was taken to page 22 of his affidavit. He was then asked to look at item 32 in the exhibits to the wife’s affidavit. It was a letter dated 3 July 1987. The letter indicated an overdraft of $143,854 as at that date. The husband was asked what purpose the funds in the overdraft were applied to. He said it was most likely to buy shares on the Australian Stock Exchange. He was not sure. He was not sure whether he had purchased them in his own name or that of his former wife R.
45.The husband had only been asked to look at the first page of the document dated 3 July 1987. The second page of the document, no doubt, would have been of some assistance to him in his recollection. That page talked about the possibility of the bank being forced to sell “your shares currently held by us for the exact debit amount plus interest outstanding in your account with us.” In those circumstances it seems probable that shares had been acquired in the husband’s sole name.
46.The husband was further asked about page 22 of his affidavit and in particular sub-paragraph (d). He was asked whether that paragraph contained reference to all the accounts held by him as at October 2000. He said he might have had an account “in Credit Agricole in Gibraltar and I also might have had an investment in Walker Crips in London”. He was unsure how much might have been in those accounts if they were operative at that time. The account at Gibraltar was in the name of T Pty Ltd. So far as the balance of the accounts which he held in the Credit Lyonnais, he said he could not remember the exact balance, however he had statements to show what that balance was and those statements were in Court with his lawyers. The husband said that in October 2000 he could have opened an account with Westpac in northern Sydney. He said that although paragraph (d) on page 22 represented the best of his recollection, it was possible that he had in October 2000 another bank account in Banque Transatlantique. He had a recollection of having opened an account with that bank in about 2000. The bank account was in association with a managed share portfolio which the bank controlled for him.
47.The husband was taken to his Financial Statement which he swore in 2004. In that statement his attention was drawn to the fact that he disclosed a bank account with Banque Transatlantique.
48.The husband agreed that after October 2000 he had an account with UBS Warberg, being a cash management account held in London. He said the account had been opened before 2000. He thought the account was either in his name or in the company name T Pty Ltd, however he was unsure of this.
49.The husband said that the money he had in accounts at separation in October 2000 was used, at least in part, to purchase the U Street, inner Sydney, property which he currently owns. In addition to using his own funds he borrowed money from Westpac Bank to buy that property.
50.Since October 2000 the husband has lent on one occasion and for a period of 10 days only, the sum of $10,000 to Ms A. Since that time she has also lent him money from time to time. He explained that he and Mrs A hold a joint account which they both contribute to equally and from which their joint expenses are paid. He pays between $800 and $1,000 per month to the account and whatever he pays, she matches. That has been the arrangement since they commenced living in a permanent relationship. The husband said the permanent relationship commenced somewhere between September 2003 and the end of that year.
51.The husband was taken to paragraph 145 of his affidavit. That paragraph reads as follows:
In order to avoid double taxation of my pension, I travel frequently to France and spend several months residing there at a time. I have to spend less than six months residing in Australia per year in order to avoid being taxed by both the Australian Government and the French Government. […].
The husband confirmed the contents of that paragraph were true. That evidence appears to be contradicted by other oral evidence given by the husband. He told me in answer to a question I asked him that he had not filed a tax return in Australia since 1990. He pays taxation on his pension in France. He has made no inquiries with the Australian Taxation Office or otherwise as to whether he is required to pay tax in Australia on the receipt of his pension.
52.The husband said that both he and Ms A receive a discount on travel costs, however the discount is different for each of them.
53.The husband conceded that following separation from his former wife R he purchased a motor vehicle for her use. The vehicle was financed in the sum of $9,600. It was payable over a period of five years. For some period of time the husband paid instalments and then paid out the balance of $8,304 on 20 October 1989. The reference to acquiring a motor vehicle for his former wife was set out at paragraph 28 of his affidavit. He was asked further in relation to that paragraph how long he had paid his former wife $3,000 per month following his separation from her. He said, “not very long”. He said there were documents he had which showed how long it was. The travel to Australia by the husband referred to in paragraph 28 (he said he would visit Australia frequently) was free travel for the husband. He said the respondent wife usually accompanied him on those trips.
54.The husband agreed he had paid school fees for H following the separation from his former wife. However, he said that she won a scholarship which covered the expenses. That scholarship was at a private School in Sydney. He agreed that in 1990 he could have still been paying tuition fees for H.
55.He confirmed that in December 2000 he paid his former wife R Lockie 200,000FF. He further agreed that he has no further legal debt to R, however, he regards himself as morally bound to pay her that which he had promised, namely approximately AUD$200,000.
56.The husband agreed that following commencement of his cohabitation with the respondent wife some 14,400FF per annum was paid to an account in France for R and H. Further in 1986 a portion of the husband’s salary continued to be paid to a joint account with his former wife R in France.
57.It was agreed by the husband that in December 2000 he entered into an agreement with R which settled their property disputes so that neither had a claim against the other.
58.During the cohabitation with the respondent wife the husband conceded he paid expenses in relation to the L property in France. He paid the expenses of that property which included expenses which were really those of his former wife R. He conceded the respondent wife kept a record of all the expenses he paid in relation to that property.
59.Whilst working for Z Company the husband conceded the respondent wife accompanied him to many work functions in Australia. He said that he seldom entertained clients at home. He agreed that the respondent wife accompanied him on overseas travel in the course of his work.
60.The husband was shown a document which ultimately became Exhibit W9. He was asked the purpose of the document and he said the document had been dictated to him by the respondent wife. He said the wife told him that he should send a letter with these explanations to “that man”. He agreed that the wife was helpful to him when he worked for Z Company; however, he also said she was at times detrimental. He did not agree that all of the contents of Exhibit W9 were true. In that document he did not agree the wife was a major asset to Z Company. He said she had a good relationship with people. It was not true that “thanks to her we have won major contracts for [Z Company]”. The husband said he did not at any stage write a letter containing that information. He stated that the contents of Exhibit W9 were prepared for a discussion he was to have with an officer at Z Company.
61.The husband said further, in relation to an event in which the wife met a government Minister of an Island nation, that she did not do so in any capacity as a Z Company representative. He denied he had asked the wife to represent Z Company in a meeting with a government Minister of an Island nation. He said it was a social event at which the wife attended, with others, because he was ill.
62.In relation to that part of Exhibit W9 headed “P2” the husband gave evidence that the contents were not, in the large part, true. He said the wife did have some contacts in Sydney; however, they were not in his opinion high level contacts. The husband said that, despite his knowledge of its untruth, he nevertheless recorded the contents of Exhibit W9 because he feared the wife would have been extremely upset had he refused to do so. He said: “I did what she asked”.
63.In relation to all of the overseas trips on which the wife accompanied the husband he agreed these were, in large part, business trips. He agreed she attended social functions with him on those occasions. He agreed that some of those were associated with work. He said: “When I was with [Z Company] I travelled to most of these countries to do an audit. Most of the time she joined me on the way to or returning from Australia”. He said it was only on a few occasions he entertained clients in his home whilst living in France. On those occasions he agreed the wife did cooking and shopping. He denied the wife had organised cocktail parties outside of the home for Z Company functions.
64.The husband agreed that in September 1991 the wife accompanied him on a promotional trip to Sydney with representatives from the Rhone region of France. He denied there were 150 “Presidents” of Rhone on that trip. He said there were 40 to 60 together with an orchestra and industrialists. He denied the wife had organised and hosted a farewell lunch in Sydney. He said it was a dinner in Kings Cross where “mostly we ate fish and chips”. He said she may have telephoned the restaurant and made a booking. He acknowledged she organised some party games which the participants engaged in at that function.
65.The husband agreed that in 1991 he had been hospitalised. He conceded the wife stayed with him each day in hospital. She assisted him in bathing and helped with his personal hygiene. She attended at his work and picked up files for him. She accompanied him to medical appointments after he left the hospital and to the physiotherapist.
66.In relation to the domestic aspects of their life the husband denied the wife cooked 95 percent of the meals whilst they resided together. He agreed that on some occasions the wife pre-cooked and froze meals before she travelled to Australia whilst the parties were living in France. He agreed that in Australia she had prepared buffets for family functions. Whilst he also agreed that she had assisted in the entertainment of Z Company clients in Australia, he said there were not a large number of those occasions and they were usually entertained outside the home.
67.The husband agreed that whilst residing in France, he returned home for lunch. He conceded the wife prepared lunch for him on those occasions when she was present. He conceded that she prepared a great portion of the meals, but denied that between 1986 and 1988 that portion was as high as 99%. He said in France the wife did the greater part of the household washing. He was unsure of how much vacuuming she did. However, he agreed that he did vacuuming and he said that the shopping was shared. The husband conceded the wife had been helpful when H came to stay.
68.The husband was shown a document which became Exhibit W10 in the proceedings. There were two portions of this document which were marked with yellow tags. He was asked to read those parts. The parts read formed part of a hand written document dated 12 November 1991. It appeared to be under the hand of the husband. The two marked parts concerned the relationship between his daughter H and the wife. The letter describes that relationship as “excellent”. That description appeared to be contrary to the relationship the husband was painting between the wife and H during the marriage. He was asked if those paragraphs were true. He said they were partly true but exaggerated.
69.The husband confirmed he pays child support for the parties’ child in the sum of $900 per month. He does not pay any other expenses. He does not support the child attending M College. He said that although he agreed to enrol the child in that school in 1999 he does not believe the parties can afford the fees. In addition there appeared to be, based on his evidence, some disagreement between the parties about which “trust money” could or should be used to meet the child’s school fees. The husband appeared to be suggesting the money said to be held by the wife in trust for the child should be applied to pay her school fees.
70.The child has not been to France with the husband since October 2000. The time he has spent with her since separation has been in Australia.
71.The husband said that in 2007 he spent every day with the child whilst she was in the Children’s Hospital. He said she had been there for two to three months. Later in his cross-examination the husband agreed that the child had been in hospital from 6 March 2007 until 12 April 2007, not two to three months. The husband said that apart from that time, due to difficulties, he was only able to exercise his time with the child for about half of the occasions provided for in the orders. The orders provided for the child to spend time with him each alternate weekend.
72.The husband said he proposes to spend one to two months in France next year (2009). He will otherwise be in Australia and available to spend time with the child.
73.The husband said he had opened an account at Westpac for the child. He had done so recently. He had deposited about $200 into the account. He wanted her to learn to manage her own money.
74.In relation to the accounts which the wife holds as “[the wife] as trustee for [the child]” the husband said he was aware the wife’s father had provided some funds for the child.
75.The husband denied that in July 1994 he and the wife separated.
76.The husband agreed that in October 1997 the wife’s father became ill and was moved to a nursing home. He said that he more than occasionally assisted the wife’s father in showering, and gave a similar response in relation to assisting to provide medication. He said that on most occasions he transported the wife’s father to and from the nursing home.
77.The husband agreed that in May 1996 the wife travelled with the child to France.
78.The husband was asked to look at his Financial Statement sworn 30 January 2004. He agreed that at that time he had a share portfolio managed by Banque Transatlantique. He believed that in January 2004 the fund was worth between AUD$30,000 and AUD$40,000. He said it was difficult to remember because there were great fluctuations in the value. At that same time he said he had a limited amount of money in cash in that bank.
79.The husband thought at that time he had savings in an entity which was called PEL. He believed this totalled 120,000FF which he thought was worth about AUD$30,000 at the time.
80.The husband said that he does not have any social security in France at the moment and therefore his medical expenses are not covered whilst he is there. The Government does not pay those medical expenses but they have in the past and they may do so in the future when the husband’s “financial situation is regulated.” He expects that will happen in the future.
81.The husband was taken to his Financial Statement sworn on 20 October 2008. He agreed he had a Westpac MasterCard Gold Card in his own name. He also had an ANZ credit card in his own name. He denied he had a credit card with Ms A. He said he had a joint account with Ms A, including an account in France. He and Ms A share equally the expenses for their cohabitation. He does not know what her income is.
82.The husband was taken to a document titled “Cohabitation Agreement”. The document was referred to in paragraph 140 of his affidavit. The document is included in the wife’s documents and exhibited to her affidavit as number 41. That document is headed: “Financial Agreement”.
83.The husband was asked whether he planned to marry Ms A. He said “no”. He was aware that a subpoena had been issued to Ms A seeking production of her financial documents.
84.The husband said that after these proceedings were concluded he will re-evaluate his participation in the payment of school fees for the child.
85.In relation to the trust accounts said to be held by the wife in trust for the child, the husband also agreed that there were shares held by the wife as trustee for the child. He agreed that shares had come from the wife’s father’s estate for the child. I note that no detail of same was provided by the wife.
Oral Evidence of Dr S
86.Dr S was required for cross-examination in relation to his report which was annexed to his affidavit. He was asked by counsel for the husband whether, when he saw the wife, she told him that she had the full-time care of the parties’ daughter. He replied, “Yes, she told me she had the care of 12 year old child.” Dr S further said the wife had indicated she was experiencing pain in attending to the physical requirements of day to day care of the home and the child.
87.Dr S was asked whether his report would preclude the wife working from home. He said, “I think she would have difficulty with employment in the home. She may be able to do it however being able to do it in a sustainable and efficient way would be questionable.” He agreed that if it was to occur she would have to be able to work at her own pace.
Oral Evidence of Ms A
88.Ms A told me she is employed on occasions in a shop, working in this capacity for three days last year (2007). Her primary occupation is associated with O Business. She has a fulltime manager running that business. She was unable to tell me her taxable income for the year ended 30 June 2008. This is determined by her accountant. She said, from her recollection, her taxable income for the year ended 2007 was $34,000. She was unable to tell me what her gross income was from investments. She lodges BAS returns in respect of her superannuation income and she paid tax of $348 on the last quarter. She supports herself by drawing funds from her superannuation fund as is necessary to meet her living expenses. She takes only what she needs and she claimed to live modestly.
89.Ms A confirmed she and the husband commenced living together permanently at the end of 2003, although they spent time together prior to that time. Prior to the signing of her affidavit in February 2006 she and the husband had spent about half of the 2004 and 2005 years in France. They have not been able to do that since because of the husband’s commitment to his daughter. She and the husband live at their coastal home approximately ten days out of each 14.
90.Ms A was shown a document. The document was not identified. She agreed the document scheduled her assets. She said the contents were correct; however, since the time of the creation of the document the situation has changed. She said the property at … has been sold. She does not know what was received. The L Shop was sold and the shares in the L company were sold. She is unable to recall what she received other than that it was a small amount of money received from sale of the shares in the L company. The property in … has also been sold. However, she did not receive any funds from that sale, nor did she make a gift of any of those funds. She had provided two tax returns to Mr Barbouttis, the husband’s solicitor, some time ago, however she could not recall when.
91.She was shown a document. She identified it as a tax assessment in respect of herself for the 2004 tax year. She agreed it showed $17,000 in franking credits.
Oral evidence of the wife
92.In her evidence in chief the wife told me she suffers from shingles. She has had three episodes this year and two last year.
93.Since she swore her Financial Statement on 17 October 2008 the wife has paid $47,470 further in legal fees. These funds came from a sale of shares held by the wife (as beneficial owner) to the child’s trust (held in the wife’s name). The wife withdrew $40,000 out of one of the accounts, said to be held in trust for the child, and transferred shares to that value to the child. The balance of the funds came from the wife’s Savings Bond. The wife tendered the share transfer document which was marked as Exhibit W12.
94.That document evidenced the transfer of 2,640 shares in Origin Energy, in exchange for a consideration of $40,000. The transfer was to the wife, in trust for the child.
95.The wife tendered the statement of fees for the child’s attendance at M College. Those accounts showed the fees for Term 1 at $3,243; the fees for Term 2 at $3,473; the fees for Term 3 at $2,935 and the fees for Term 4 at $2,956. The wife also tendered a book list which has been issued for the child for the 2009 year. That showed the cost of books required for her at $709.
96.An email marked as Exhibit W15 shows that the child’s performance class fees for dancing next year will be at about $175 per term; ballet lessons will be $85 per term, and the technique, strength and flexibility class $85 per term.
97.The wife was cross-examined. She agreed that her affidavit had not been filed until December 2007, which was well outside the period allowed for the filing of the affidavit. She agreed that it took the threat of an undefended hearing to obtain the filing of the affidavit. She had eighteen months to consider the content of the husband’s affidavit. She agreed that she had an opportunity, with documents, to confirm the contents of his affidavit. Further, she agreed that during that time she had all of the documents which ultimately she exhibited to her affidavit, and which were provided to the Court in a folder. She said she had found some documents after that date.
98.The wife agreed she was aware that an issue between the parties was the extent to which each had brought assets to the marriage/cohabitation.
99.The wife was asked about her knowledge of the husband having acquired shares in Ariadne.
100.She confirmed that she had bought shares in Ariadne. It appears in context that this was about the time the parties’ relationship commenced.
101.The wife agreed that in October 1986 there was a relationship between herself and the husband. She agreed that during the cross-examination of the husband he was taken to a document which set out details of the husband having purchased shares in Ariadne in his former wife’s name. She agreed that she became aware that the husband had purchased 53,300 shares in Ariadne in August 1986. She was aware of that prior to the time she signed her affidavit. She was aware that the cost of the shares was approximately $164,000. The wife further agreed that in addition to the 53,300 in Ariadne, the husband had purchased another 5,000 shares in that company. She also agreed that she became aware that in August 1986 there were 58,300 shares purchased in Ariadne in the husband’s former wife’s name. She was aware of that before she signed her affidavit. She agreed that the total purchase price was somewhere in the order of $182,000. She conceded that the price of the 53,300 shares purchased was about $3.08 per share. The price of the 5,000 shares purchased in Ariadne was $3.14 per share.
102.The wife agreed that in 1986 the husband told her he was purchasing shares. He did not tell her at that time he had an overdraft with Banque Nationale de Paris. She became aware of that later and became aware that he was using the overdraft for trading shares. She knew of that prior to the time she signed her affidavit.
103.The wife was taken to document number 3 in her book of exhibits to her affidavit. This is a statement from the Banque National de Paris for the husband commencing 1 October 1986.
104.The wife agreed that she had instructed her counsel to cross-examine the husband on that document. She agreed she heard it put to the husband that on 10 October 1986 he had an overdraft of $143,000. She said at paragraph 26 of her affidavit she had referred to this overdraft. Paragraph 26 sets out the property and liabilities of the husband as asserted by the wife as at the date of cohabitation. The wife had asserted the date of cohabitation was about 10 October 1986.
105.In answer to questions from the husband’s counsel, the wife agreed that she did not refer in that paragraph to any shareholding of the husband in Ariadne. In so doing she was aware that the husband had a very substantial benefit of shares in Ariadne. She was taken to the statement from Banque Nationale de Paris and her attention was drawn to an entry on 10 October 1986 showing the purchase of 3,653 shares in Ariadne. The purchase price was $18,676. She acknowledged that was on the statement. She agreed that those shares were obviously in addition to shares purchased by the husband on the 6 August 2006. It was not referrable to the 5,000 shares which had been purchased earlier.
106.The wife’s attention was drawn to the statement from Banque Nationale de Paris for the date 30 October 1986. She agreed that statement showed $27,000 being transferred to Banque Nationale de Paris in Singapore and $30,000 being transferred to UAB in Geneva. Further, she acknowledged that before she signed her affidavit she knew the husband had in 1986 an account in Tokyo. She accepted that in October 1986 the husband had AUD$6,600 in that Tokyo account.
107.The wife further acknowledged that the particular statement from Banque Nationale de Paris for October 1986 showed that on 30 October 1986 there was transferred into that account just under AUD$200,000. The wife was asked why she made no mention of those funds in her affidavit. She said it was “Because my affidavit was referrable to a start date at the 10 October 1986.” She acknowledged that the deposit of nearly $200,000 on 30 October arose from the sale of Ariadne shares, being just under 50,000 shares. She acknowledged the $179,500 from the sale arose as a result of the sale of Ariadne shares which had been purchased in the husband’s former wife’s name in 1986. Notwithstanding that evidence the wife in her written submissions raised an argument that there was no evidence that the husband ever owned the Ariadne shares which had been purchased in his former wife’s name.
108.The wife acknowledges that in his evidence the husband had said that at the date of cohabitation he had a debt of $117,358. She also acknowledged that he said he had a share portfolio of $176,000. It was put to her that his evidence must have been correct. She said, “He said the cohabitation commenced in February 1987.” It was put to the wife that in October 1986, it now appears, on her own evidence, that the husband had a debt of about $117,000. She acknowledged that was correct. The wife also acknowledged that as at 10 October 2008 the husband must have had shares (beneficially owned by him) to the value of AUD$199,000. The wife further acknowledged that after the sale of the shares on 30 October 1986 the husband must have had another 10,000 shares in Ariadne which he still held.
109.The wife was asked why she did not mention the above conceded facts in her affidavit. She said, “I could not confirm he didn’t have an overdraft somewhere else.” It was put to the wife that her affidavit was quite misleading, given the knowledge she had of the husband’s financial circumstances in October 1986. She replied. “No, because I couldn’t confirm he had those shares at the 10 October 1986.” The wife acknowledged that the shares retained by the husband either in his name or his former wife’s name after the sale of those on 30 October 1986 probably had a value of AUD$39,000 to AUD$40,000.
110.Again, having had her attention drawn to the statement from Banque Nationale de Paris for October 1986, the wife acknowledged that at 30 October 1986 the balance of that account was in credit in the sum of $2,580. That was the case, she agreed, after $57,000 had been sent overseas by the husband.
111.The wife was then taken to Exhibit W7. This was a letter to the husband from Banque Nationale de Paris, Singapore branch, and dated 7 November 1986. The wife agreed she had caused the husband to be cross-examined on this document. She agreed she had this document with her prior to signing her affidavit. She was asked whether she had read the document thoroughly before annexing it to her affidavit. She said, “I saw the overdraft. That’s the part I read.” She said she did not recall reading the whole document. She agreed that in her affidavit she had made specific reference to the overdraft. She agreed that the terms and conditions of the overdraft were set out in the letter. She agreed that it was very important to give a balanced picture in her affidavit. She denied she had chosen to leave out of her affidavit important aspects referred to in that letter. She agreed the letter provided as a condition of the overdraft that the security was a pledge of shares in the name of the husband. The amount of the overdraft must not exceed 60 per cent of the value of the share portfolio. The shares were to be diversified and marketable blue chips.
112.As a result of the letter the wife conceded that if the husband had borrowed the $100,000 he would have to have lodged shares worth $160,000 with the bank to be within the parameters of the conditions of the loan.
113.The wife conceded that at the time she signed her affidavit she knew the husband had drawn on the overdraft and she further knew he had complied with the conditions.
114.She further acknowledged that her counsel had cross-examined the husband in relation to a further letter of July 1987 which stated the overdraft on the subject account had grown to $143,000 in debit.
115.The wife agreed that in paragraph 26 of her affidavit she had specified the liability of the husband in respect of the overdraft to Banque Nationale de Paris, Singapore branch, at $100,000 as at the date of cohabitation commencing. She agreed that as at 10 October 1986 she had no evidence to show the husband had in fact drawn on the overdraft.
116.It was put to the wife that notwithstanding her ability to include in her affidavit the liabilities of the husband, she was not prepared to refer to the $199,000 paid into the Banque Nationale de Paris on 30 October 1986. The wife said she overlooked that.
117.The wife was taken to page 52 of her affidavit, paragraph 389 sub-paragraph 15(f). This paragraph was struck out by me in the reading of the affidavit. Nonetheless, it was available for cross-examination and the wife’s attention was drawn to it. It was pointed out that the contents of that paragraph made it very clear the wife knew that on 6 August 1986 the husband had transferred $158,453 to an account held by his former wife to cover part of the cost of $167,302 for the purchase of shares in his former wife’s name. The wife acknowledged she had statements in relation to all those accounts. It was put to the wife that in light of all that knowledge she had deliberately chosen not to include details of the sale of the Ariadne shares in October 1986 in her affidavit. She responded, “I didn’t know what debt was with it.”
118.The wife acknowledged that she knew the husband had $180,000 from the sale of his Island property. She said that was put on the market in late 1988 and sold in 1990.
119.It was put to the wife that in October 1986 the husband had access to the following assets:
· Access to a substantial portfolio of shares in Ariadne. She agreed.
· Assuming the advance from the Banque Nationale de Paris in Paris had been complied with in terms of the conditions of that advance, the husband would have held a further $160,000 in shares. She agreed.
· Approximately $56,000 in accounts overseas. She agreed.
· Approximately $6,600 in an account in Tokyo. She agreed.
· She agreed that the husband’s recollection that at the time of cohabitation he had approximately $70,000 in cash in banks was correct.
120.The wife was taken to paragraph 19 of her affidavit.
121.The wife agreed the shares in public companies which the husband had listed as totalling $40,565 included 2,650 shares in Ariadne which he had valued at $3.42. She agreed she ultimately sold those shares at a substantial loss of $7,800, realising only about $2,000 from the sale.
122.In late 1988 the wife gave up her employment to travel to France. She agreed that she was not employed from the end of 1988 until October 2000. Apart from holiday pay and a payment from her former employer she was dependent upon the husband’s income. She said that she also had her investments.
123.In early 1987 the parties purchased the N Street property. The interest rate on the mortgage was 6 per cent as compared to the market rate of 16 per cent. The wife agreed the special rate only applied until mid 1989 and then the parties paid market rate. The husband had contributed $28,000 towards the purchase of the property prior to the settlement of same. The wife agreed that following the parties moving to France the property was rented and with the exception of the first period when the husband had “leased it for cash” the income had been retuned to her. She acknowledged that half of the income was correctly the husband’s.
124.In the 1989 tax year the wife acknowledged the rental property ran at a loss. In the 1990 year the gross rent was $12,400 and the expense $15,500. The loss, the wife acknowledged, was made up from each of the parties’ income and resources.
125.In the 1992 tax year the rent exceeded the outgoings by $3,300. The wife acknowledged that in 1992 $10,000 was paid in reduction of the mortgage from savings in a BT Trust Account. On 1 May 1995, $21,000 was paid by the husband from the parties’ joint account in France. The wife acknowledged that the funds for that account came from the husband’s income.
126.When the H Street property was purchased in 1998 it cost $600,000. The sum of $300,000 was borrowed and the balance was made up of funds in accounts in France. The funds in those accounts were predominantly provided by the husband. Ultimately, the sale of the N Street property was used to discharge the mortgage on the H property.
127.The wife acknowledged that in May 1994 she returned to Australia. Between May 1994 and May 1996 the husband predominantly lived in France. During that period the wife was not in employment. It was put to the wife that the husband had provided funds to support her during that period. She denied that and said it was mainly from her father. She agreed the husband provided significant funds towards her support. She claimed to also have investment income during that period. She agreed her investment income was not significant.
128.The wife was asked whether she had prepared a schedule of the income earned by her during the course of cohabitation. She said she had and that document was identified and became Exhibit H10.
129.The wife was asked about her evidence that between May 1994 and May 1996 the husband had only visited Australia once every couple of months. It was put to her that during that period he visited more frequently than once every two months. She agreed that on two occasions he had visited twice in the one month. She agreed that her recollection of those visits was incorrect. The wife further agreed that during that period although she claimed she was separated she agreed that the husband stayed with her when he was in Australia.
130.In relation to the wife’s claim that she holds money in trust for the child, she agreed there was nothing in writing for the establishment of the trust and the bank accounts themselves are the only evidence of the trust (there are also shares held by the wife “for [the child]” although no details were provided as to the number or value of those shares). She denied she had opened most of the accounts herself. She said they were her father’s accounts which she took over. She agreed the account held by her father with St George Bank entitled ‘[OU] in trust for [the child]’ was closed and the money transferred to an account in the wife’s name as trustee for the child.
131.The wife agreed that the source of funds for accounts in the child’s name was a variety of accounts. The wife denied that some thousands of dollars deposited in the accounts had come directly from either herself or the husband. She agreed that she had recently withdrawn $40,000 from the accounts for her own benefit; however, she said that she transferred $40,000 worth of shares in her name to the Child Trust in exchange for that cash. The wife said she had not used any of the funds she holds to pay the child’s education fees because the funds in the Luxembourg account are for her education and the funds she holds are for her future. She said the bulk of the monies in Australia were sourced from her father and/or her compensation monies. The wife said that in the preparation of her affidavit she could have set out details of what funds had come from her father but, she said, “My health didn’t allow it.”
132.The wife was asked about paragraph 238 of her affidavit. Although that paragraph was not read, the wife was taken to the first sentence where she had set out as follows:
“[the child’s] assets were established with funds variously from our joint funds, my compensation monies, my family contributions, gifts from my father, birthday presents from different family members and friends and from inheritances received by me as referred to earlier in this affidavit. The balance was provided by me from savings I had prior to our cohabitation”.
133.It was put to the wife that the funds in the Luxembourg account came from the husband. The wife replied: “They came from accounts in my name and [the child’s] name which all originally came from [the husband].”
134.In relation to the husband’s contribution as a homemaker the wife denied the husband had contributed a considerable amount in the home. She denied the husband had made any “considerable” contribution towards the care of the child.
135.Prior to the purchase of the H Street property the wife’s father was a member of the household for approximately 12 months. It was put to the wife that the husband had assisted her father in the way in which he set out in his affidavit. The wife conceded only that the husband had assisted her father occasionally.
136.The wife was cross-examined about her trips accompanying the husband. She agreed that all expenses for air travel and accommodation were paid for by the husband’s employer. She said the husband received an expense account. However, she said that they used some of their own money to buy food.
137.In relation to the assistance the wife claims to have given the husband in his employment, she claimed at one stage that: “The CEO was liaising with me about the husband’s employment”. I accept that statement was an exaggeration by the wife. The wife conceded that nowhere in her evidence does she set out any detail of how she says the husband’s career was advanced because of something that she did.
138.So far as her own employment was concerned the wife conceded she has not worked since 2004. She has not made any applications for work. She said her eyes were not good enough to take on translation work. She claimed to have no future capacity for work.
139.The wife was asked about an account with St George Bank, being account number …. She said the funds in the account comprised of her money. The following was asked of her: “Is it the case that the funds in that account do not represent funds in trust for [the child]?” The wife replied: “It may be that funds from part of [the child’s] trust money is in this account.”
140.The wife acknowledged that the interest from the IBD trust accounts held by her father for the child was paid to an account into which the father’s pension was paid. There is at least an inference that the income from those funds was applied for the benefit of the wife’s father.
141.In relation to the trust accounts now held by the wife, being bank accounts, she said the income from the trust was/is returned in her tax return on which she pays personal income tax.
142.The wife acknowledged she could close all the bank accounts she holds for the child with St. George Bank tomorrow. She also acknowledged that she could pay those funds into an account in her sole name.
143.The wife said she had used some of the interest paid into her account from the child’s monies to purchase shares for the child.
Credit
The Husband
144.The husband gave his evidence in a straight forward and apparently honest manner. There was nothing about his presentation in the witness box or the content of his evidence, both written and oral, which led me to believe he was not being truthful.
145.In his cross-examination he gave every conceivable concession he could give. He readily conceded his memory was not good, especially in relation to the earlier years of the relationship with the wife. It was those earlier years of the relationship where he thought his recollection of bank accounts and the like was not good. He did, however, give the impression of attempting to be of assistance to the Court with his evidence. It subsequently transpired, following concessions made by the wife as to the financial circumstances of the husband at the time of the commencement of cohabitation, that his recollections were quite good.
146.There were areas of his evidence which I found compelling and preferred to the evidence of the wife. Those areas were the involvement of the wife in the husband’s employment with Z Company and Z International. The wife sought to make a case that she had been of significant assistance to the husband in his employment with both those companies. She sought to suggest that she had been instrumental in achieving advancement for the husband within the companies. She sought to make out a case that she played important roles in promotional trips to other countries and Australia. The husband agreed she had been of assistance to him on those trips; however, he denied she did anything which was of importance so far as the companies were concerned. The wife agreed she was never employed by either of the companies which employed the husband. She agreed she was never commissioned by the companies to represent them.
147.The other area of evidence where I particularly preferred the husband’s evidence to that of the wife related to his contribution as a homemaker and parent. The husband did not, in my view, attempt to aggrandise his contribution in this area. He willingly conceded that the wife made the major and the most important contribution. He did, however, profess to have made a complimenting contribution in this area. The wife would not agree that he did anything other than make the most minimal of contributions. This attitude of the wife also extended to the services which the husband extended to the wife’s father whilst he was alive and not well.
148.On balance I do accept the evidence of the husband to that of the wife where there is no documentary, corroborative evidence to support either party’s evidence.
149.The wife displayed a very mean-spirited attitude to her evidence so far as it related to the husband. Examples of this related to her evidence about the assets and liabilities of the husband at about the date of the cohabitation. She gave evidence in her affidavit about an overdraft which the husband had with the Banque Nationale de Paris in Singapore. Her counsel cross-examined the husband about the overdraft. In that cross-examination the husband had great difficulty remembering the circumstances of the overdraft. A letter was produced to him which had been included in the book of exhibits filed with the wife’s affidavit under tab 32. The letter made it clear the overdraft was secured against shareholdings which were held by the bank. The husband knew he had been share trading at about the date of the cohabitation however, was unable to recall all the details of same. Evidence emerged in the correspondence, which the wife had possession of at the time she signed her affidavit, that it was a condition of the overdraft that the amount of the advance did not exceed more than 60% of the value of the share holding held by the husband. The wife claimed she had not read the conditions of the loan. The wife further said she was not prepared to set out detail of the shareholding held by the husband at the date of the cohabitation because he may have had a further overdraft which was not known to her.
Ms A
150.Ms A is the husband’s partner. She gave her evidence in a straightforward and apparently honest manner. She was asked many very private and personal questions about her financial circumstances and the nature of her relationship with the husband. She was remarkably good natured about the questions she was asked. There was nothing about her evidence which made me suspect she was not being truthful.
·The wife provided most of the day to day care, supervision and emotional support for [the child] (wife’s affidavit 251 to 265).
·In 2002 the wife received an inheritance from the estate of her father being a sum of $43,365.00, furnishings and household effects, shares to the value of $2,886.00 and a 24/58 share in the [E] Road property (wife’s affidavit paragraph 195).
·The wife applied part of the sum of $43,365.00 from her inheritance to pay for improvements to the [E] Road property (wife’s affidavit paragraph 196).
·The wife paid to purchase the interest of her brother in the [E] Road property in the amount of $90,000.00 from her savings being her compensation monies and $180,000.00 from a loan from Westpac (wife’s affidavit paragraph 197).
·The wife paid living expenses for [the child] since separation (wife’s affidavit paragraph 229, 231, 233, 240 and 246).
363.I find the contributions of the wife to the date of separation to be as follows:
a)Her initial contributions as determined by me;
b)Her income as determined by me;
c)Her homemaker and parent contribution as determined by me;
d)Her compensation payment received in 1999 of $147,558;
e)The benefit which the wife received from her employer of a discounted loan rate which was used to buy the N Street property;
f)Management of the parties’ finances during the cohabitation. I find that the wife was the person who did the majority of the financial management for the family during the cohabitation;
g)Rent free accommodation provided by the wife’s parents from November 1986 to February 1987; between 1989 and 1994 when the parties visited Australia; between 1994 and 1996 when the parties were separated; between December 1996 to December 1998; and between July 2000 to March 2001;
h)Her support for the husband when he travelled in the manner determined by me. Also support for the husband when entertaining his business associates;
i)The wife’s father provided assistance to the wife and the child between 1994 and 1996 as detailed by the wife in her evidence. He also assisted in similar ways until 1997;
j)Inheritance of $25,513 in 1991;
k)Use of the E Road property between January 1997 and August that year;
l)Bathing and other personal assistance to the husband when he was debilitated with his back injury.
364.In addition to the above set out submissions of the husband he made further submissions (in accord with the directions made by me) as follows:
14.Following separation the husband contends that he has made the following contributions:
(a)After separation, the husband resided at the [E Road] property for a period of time. During this period, the husband paid for all utilities and household bills for that property, including the cost of a gardener (see paragraph 124 of the Husband’s affidavit);
(b)Since separation, the husband has been providing financial support to the wife to assist with [the child’s] expenses, initially in the sum of $1,400 per month but later $900 per month. In addition, the husband has been paying for some of [the child’s] expenses such as clothes, shoes, child psychologists, etc. (see paragraph 124 of the Husband’s affidavit);
(c)The husband has continued to receive an income from his French-Pensions;
(d)In December 2002, the husband purchased the [U] Street property using funds from the sale of the [Island] property. The husband has paid all outgoings in respect of the [U] Street property (see paragraphs 131 and 137 of the Husband’s affidavit);
(e)The husband cares for [the child] when she spends time with him, and despite the difficulties involved with contact in the past, the husband has remained involved in all aspects of her care and medical treatment since separation.
15.By comparison, the wife has made the following contributions since separation:
(a)The wife receives rental income of $325 per week from the [E] Road property (see paragraph 196 of the Wife’s affidavit);
(b)The wife received an inheritance from her late father in 2002 which included a legacy of $43,365 and a 24/58 share of the [E] Road property (see paragraph 195 of the Wife’s affidavit);
(c)The wife purchased her brother’s share in the [E] Road property in 2003. The wife alleges that she applied $90,000 from her compensation funds toward acquiring this interest, and borrowed a further $180,000 secured on the [H] Street property. In addition to the other matters raised above, the husband contends that the wife’s contribution with respect to acquiring her brother’s share is diminished by the fact that a matrimonial asset, namely, the [H] Street property, was encumbered in order to acquire the said interest (see paragraph 197 of the Wife’s affidavit);
(d)The wife appears to have acquired shares and investments in her name (a substantial number of these assets allegedly held on trust for [the child]). The husband contends that the wife has not adequately explained (except in the vaguest of terms) the source of funds for these assets. Accordingly, the Court is invited to find that these assets have been derived from funds arising out matrimonial assets (the majority of which are funds generated by the husband’s employment and or assets at the commencement of the relationship).
16.The husband respectfully submits, in respect of contributions generally, that as a consequence of the Court’s findings on credit as contended for by the husband, wherever there is a dispute on the facts (except where concessions have been made by the parties), the Court ought to accept the husband’s evidence over that of the Wife.
A. DIVISION BASED ON ASSESSMENT OF CONTRIBUTION
17.The husband contends that at the date of separation, the parties’ contributions should be assessed as follows:
(a) Husband – 55% to 60%;
(b) Wife – 40% to 45%.
18.At the date of trial, principally as a consequence of the inheritance received by the wife comprising her father’s half interest in the [E] Road property, contributions should be seen to be:
(a) Husband – 50% to 52.5%;
(b) Wife – 47.5% to 50%.
The parties’ post-separation contributions
365.The husband’s post separation contributions (over a period of 8 years) were as follows:
a)Financial support for the child and the wife ($1,400 per month and then $900 per month over a period of 8 years);
b)Care of the child during the time she has spent with him;
c)Management of the assets in his control post-separation;
d)Contribution to the costs of the E Road property whilst the husband resided there post-separation;
e)Purchase of the U Street property. Funds from the T account and borrowings were used to purchase the property. The husband has serviced the debt on the property.
366.The wife’s post separation contributions (over a period of 8 years) were as follows:
a)Care and support of the child;
b)Management of the assets which remained in her control at separation, including the assets which were said to be held in trust for the child.
c)Inheritance from her father of an interest in the E Road property. She also received $43,365 together with house contents and shares valued at $2,886.
d)The purchase of her brother’s interest in the E Road property. She used savings and borrowings to acquire that interest. She has since rented the property.
Conclusion on assessment of contribution
367.In weighing the contributions I bear in mind the availability of the husband's income to the parties during the cohabitation was substantially reduced by the fact that parts of his salary package were applied for the benefit of his former wife and daughter and not all of his income was contributed to the marriage between the parties to these proceedings. Significant sums were required to be paid for property settlement and support of the husband's former wife and daughter.
368.Having regard to the submissions of the parties, the findings of fact made by me, and the agreed facts which are set out earlier in these reasons I determine that the contributions of the parties to the date of the separation favour the husband largely because of the considerably greater initial contributions. As at the date of separation the assessment I make is 56% to the husband and 44% to the wife. Following the separation the contributions of the wife have been significantly greater than those of the husband. The wife inherited a 41% interest in the E Road property which has a value on the balance sheet of $775,000. She has had the majority of the responsibility to supervise and care for the child, from separation in October 2000 until November 2008 (the commencement of the trial), who has had considerable health problems. As at the date of trial I consider the parties’ contributions to be 56% to the wife and 44% to the husband.
369.In assessing the contributions and weighting them I have had regard to the findings I have made in relation to specific matters of contribution. I have disregarded as a contribution any item of claimed expenditure by either party where that expenditure has clearly been derived from income earned during the cohabitation and already considered and weighed as a contribution under the heading “the incomes of the parties” or from capital which has already been identified as a contribution.
370.The husband relies upon a contribution made to the care of the wife’s father. That contribution does not appear to fit into any of the defined area for consideration as set out in s 79(4)(a) to (c) inclusive. It is however a matter which needs to be considered and I propose to do so under s 75(2).
371.I have not taken into consideration at this point the claimed contributions in relation to superannuation or the husband’s pension’s which I will consider hereafter.
Contributions to the parties’ superannuation
372.In the balance sheet the parties created a heading “SUPERANNUATION” and another heading “FINANCIAL RESOURCES”. Under the superannuation heading the wife’s superannuation is collected and has a value of $49,394.
373.At the date of commencement of cohabitation the wife’s superannuation had a value of $13,613.
374.Neither party addressed the assessment of contribution to the wife’s superannuation. They appear to have approached the case on the basis that the parties’ superannuation (in this case the wife’s) should be included into the one pool with the parties’ assets and have the assessment of contribution in relation to the assets of the marriage include an assessment of the contributions to the wife’s superannuation.
375.The husband’s contribution to the wife’s superannuation can only be indirect.
376.I propose to assess the contributions to the wife’s superannuation notwithstanding the fact that neither party seeks a splitting order. I will take into account under s 75(2) any assessed entitlement of the husband.
377.There is no evidence of any direct contribution by the husband. The wife had a substantial interest in her super fund at the date of cohabitation.
378.The indirect contributions of the husband see an assessment of 70% to the wife and 30% to the husband.
Section 75(2) Factors
379.Each of the parties provided extensive written submissions in relation to the adjustment proposed by that party under section 75(2). I do not at this time propose to include those submissions here; however, I have considered each submission in the determination and conclusion which is set out hereafter.
(a) The age and state of health of each of the parties
380.The husband is 68 years of age. The wife is 55 years of age. As seen earlier in these reasons I made the following determination in relation to the parties’ health and capacity to earn income:
I accept that the wife does not have any reasonable capacity to work for remuneration in the future. I conclude that unless there was a radical change in her health, which is not predicted by the medical evidence, it is most unlikely she will be in a position to earn any meaningful remuneration.
The husband has not worked for many years and there is no serious suggestion that he should return to some form of employment. He receives a pension from France which I understand is his main source of income.
381.The husband suffered from a serious back condition during the cohabitation.
382.Neither party has provided evidence as to the cost of future medical treatment and necessary services required as a result of a medical condition. The wife’s attempt to provide information as to cost was contained in her affidavit sworn 29 October 2008 however, the particular paragraphs dealing with same were not read after objection was raised.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
383.The husband is retired and derives his income from his French pension. The wife managed some part time work after separation however, that has ceased and I have found she has no reasonable capacity to work.
384.Each party has had the benefit of investments post separation which they could use to assist in their support.
385.In relation to the French pension the husband made the following submission:
For the purposes of the trial, an actuary was employed to calculate a present day value for the husband’s pension entitlements. Counsel for the wife, however, conceded that these entitlements did not constitute superannuation or a superannuation entitlement to which the relevant provisions of the Family Law Act in relation to those matters applied. The pension entitlements do, however, provide a certain income for the husband for his life. Significantly, however, on his death they provide an ongoing (but at a lesser value) income-stream for the wife. The Australian Life Tables provided in the CCH publication, Australian Family Law and Practice, indicate that the husband’s potential lifespan is approximately 15 years whereas the wife’s approximate lifespan is 29+ years. On that basis, she will receive the benefit of the husband’s pension entitlements, much of which were attributable to the period prior to his relationship with her for about the same number of years as he will benefit from them. Obviously in the first instance and to a greater extent than will be received by the wife, those entitlements benefit the husband.
The wife has superannuation the husband does not.
386.Without having regard to the Australian Life Tables I am able to reasonably conclude, I believe, that it is probable the wife will outlive the husband. As such I am able to determine that the provision for the wife to receive part of the husband’s French pension upon his demise is of value to her. It may be many years before she receives the benefit if she does at all and thus this provision can only be given a small weighting.
387.I set out here the evidence in relation to the value of the husband’s pension. Mr Y prepared a single expert report (dated 21 November 2007). It is annexed to his affidavit sworn 21 November 2007 and filed 6 December 2007. The single expert report dealt with the husband’s interest in the French pension funds which he holds and valued those pension funds as at 10 October 1986 (the date of cohabitation asserted by the wife), 1 February 1987 (the date of cohabitation asserted by the husband),and 3 October 2000 (the date of separation) and 1 November 2007 (the then current date). The report was prepared on the basis that the husband is in receipt of three lifetime pensions from Paraunion: ARRCO & AGIRC (supplementary pension); CRAM (social security) and CRAMIF (worker’s compensation). The table outlining the values at the stages on the timeline and answers to important questions (posed in a letter from Pearson Family Lawyers to Mr Y dated 15 December 2006 and attached to the report of Mr Y) regarding the pension fund are set out in a table on page 6-8 of the report and the limitation/disclosure regarding the report is set out at page 9. The current value attributed to the pensions is set out in the balance sheet.
388.I take into account here that the wife must be seen as having made an indirect contribution to this resource of the husband’s.
389.The husband’s Financial Statement sworn 20 October 2008 shows he was receiving a weekly pension of $2,053 from the French pension funds.
(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
390.As set out earlier, the parties will share in the care of the child who is now just 15. The wife will have the major portion of the child’s time. Both parties will contribute to the financial support of the child. There is no Child Support Assessment however, the husband has voluntarily paid substantial child support ($900 per month) since the separation. In paragraph 124 of his affidavit the husband said he paid other expenses for the child including clothes, shoes and a child psychologist. No particulars were provided and so I am unable to give that allegation any weight. The husband has not paid for the child schooling since separation. She attends a private school. The husband said he would consider contributing to the cost of school and other activities in the future.
391.The child has expenses associated with extracurricular activities such as dancing. She also has medical expenses which have been met by the wife.
392.The husband will contribute to the future care of the child as provided for in the consent orders relating to parenting.
393.I accept that the wife will also make a significant financial contribution towards the support of the child in the future. I conclude the contribution will probably be greater than that made by the husband.
(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain;
394.The financial circumstances of the parties have generally been considered in this hearing. There has not, however, been any specific evidence given as to the parties’ day to day living expenses. To the extent that there is evidence about that I have taken it into consideration.
395.The husband is in a de facto marriage relationship with Ms A. Her financial circumstances to a limited degree were canvassed in the hearing and I have made findings in relation to some aspects of that relationship. I incorporate those findings at this point.
396.The husband gave evidence that he is bound to pay funds to his former wife R Lockie. He has no legal liability to pay her any further funds. He says he regards himself as morally bound to do so. He has, in the past, failed to pay moneys to her as provided for in court orders. I do not believe I could be satisfied that the husband will ever make that payment to her although, I acknowledge, his good intentions.
(e) The responsibilities of either party to support any other person
397.The husband has a complimenting obligation to contribute to the support of Ms A and she likewise towards the husband. They now provide support for each other by the provision of accommodation both in Australia and in France. They have an arrangement which sees them both striving to contribute equally to day to day living expenses.
(f) Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party
398.I have referred earlier to the husband’s eligibility for income from France.
(g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
399.The parties lived a reasonably high standard of living in some measures. Through the husband’s employment the parties were able to travel extensively around the world. The husband still has that capacity to some extent (he now receives discounted travel privileges). He has been living about half of his year in France and the other in Australia. That may change in the future now the husband has the benefit of orders to share time with the child.
400.The husband lives with Ms A in coastal New South Wales and also shares the U Street property with her when he is living in Sydney.
401.The wife has occupation of the H Street property and has the income from the E Road property.
(h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
402.This is not a matter for consideration in this case as neither party seeks an order for spouse maintenance.
(j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
403.The parties’ contributions have been considered by me earlier in these reasons.
(k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
404.The cohabitation lasted from October 1986 until October 2000. There was a period of separation from 1994 until 1996. Thus, the parties cohabited for 12 years. The question of the parties’ earning capacity is referred to earlier.
405.Suffice to say I do not find that either parties’ earning capacity has been impacted upon by the marriage itself. The wife’s earning capacity has been impacted upon by her disabilities/medical condition.
(l) The need to protect a party who wishes to continue that party's role as a parent
406.The wife has not run a case which has this element at its core. The wife will be available to care for the child due to the wife’s incapacity for work.
(m) If either party is cohabiting with another person - the financial circumstances relating to the cohabitation
407.The circumstance of the husband’s cohabitation with Ms A has been considered in this judgment earlier.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties
408.Based upon my determination of the division of assets after assessment of contribution, the wife will receive $1,722,246 worth of net property together with her superannuation ($49,394) and the husband will receive $1,353,194 worth of net property. The wife retains all of her superannuation although I have determined that the husband has made an assessed contribution towards that superannuation. The husband will retain his French pension although the wife must be seen as making an indirect contribution towards that as it was partly accumulated during the cohabitation. As a result of the division determined by me based on assessment of contribution the wife will receive $369,052 more in net assets that the husband.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
409.There is no Child Support Assessment although the husband pays child support.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
410.Since the completion of the trial the parties’ post-separation contributions have continued. So far as the wife is concerned the contributions of greatest moment which need to be considered are her ongoing care for the child and her financial support of the child. In relation to the husband the contribution of greatest moment on his behalf, post trial, is his payment of child support for the child and his contribution towards her care. Since the commencement of the trial before me the contribution of the husband in the care of the child will have increased pursuant to the Orders made by me at that time.
411.Post-separation the wife has had occupation of the former matrimonial home. This has been a period in excess of 8 years. She has also had the use of the monies referred to as “[the child’s] trust money” although I accept she has not availed herself of those funds. Since the separation the husband has used the funds in the T trust to purchase his property at U Street. He has since had the use of that property. The wife has the benefit of the E Road property which has been rented by her. She meets the outgoings on the property.
412.The husband relied upon a contribution made to the care of the wife’s father. That contribution does not appear to fit into any of the defined areas for consideration as set out in s 79(4) (a) to (c) inclusive. It is, however, a matter which needs to be considered and I take it into account here as it was a contribution which the parties collectively saw as appropriate. If the husband had not assumed the role he did in relation to the care of the wife’s father then I am satisfied she would have done so or the parties would have hired others to attend to those matters.
413.Prior to delivering this judgment I advised the parties in advance of my intention to hand down judgment. Given that a considerable number of months had passed since the trial concluded I wished to give each an opportunity to consider making an application to re-open. No such application was made.
414.I need to consider that included in the balance sheet the parties’ paid legal costs are included. The wife has a figure of $165,485. The husband has a figure of $91,114. So far as the husband is concerned there is noted as a liability his debt for legal fees in the sum of $27,700. The significance is that when the balance sheet assets are divided the wife will have $165,485 on her portion of the assets which is a notional sum only. The same is true for the husband, although for a smaller sum. I also need to consider that each party will have to pay further legal costs as referred to in the exhibits W6 and H8.
415.I take into account that I have found the husband to have an assessed contribution to the wife’s superannuation. There will be no splitting order and therefore the husband cannot receive any portion of the superannuation. The adjustment will have to be in the other assets of the parties.
(p) The terms of any financial agreement that is binding on the parties
416.There is no such agreement.
Conclusion
417.The husband submits that:
Having regard to s.75(2) factors, there are in reality only two of those that favour the wife. Those are the fact that she will have the care of the parties’ daughter, [the child], for some years to come and secondly that the husband has the benefit of a certain income for his life. As to that latter matter, it has already been submitted that that benefit will in the ultimate almost certainly flow to the wife at a lesser level. Overall, it is submitted that the s.75(2) factors do however favour the wife. However, having regard particularly to the husband’s age and other matters to no great extent so that overall it is submitted the division between the parties should be an equal division or possibly a division favouring the wife in the amount of 52.5%, while the husband would retain 47.5%.
418.The wife submits that she should have an adjustment of 12% assuming she receives 58% of the parties’ net assets following the assessment of contribution. I assume that she would seek a greater adjustment if the assessment of contribution sees her with less than 58% of the parties’ assets. Overall the wife says she should receive 70% of the parties’ assets.
419.It should be remembered that the submissions of the wife are based upon the Court excluding the “[child’s] trust money” as an asset of the parties.
420.I agree with the submission of the husband which promotes an adjustment in favour of the wife. I agree that the most significant matters which warrant that adjustment are the wife’s greater care for the parties’ child who is now 15 years of age. I also agree that the difference between the parties in terms of their future incomes where neither will be working is a very important matter. The pensions currently provide the husband with a weekly income in excess of $2,000. Part of that income he contributes to the support of the child. The husband does pay tax, although he assessed that at $138 per week. He also contributes towards the support of H at the rate of $58 per week and the support of his mother in the sum of $25 per week.
421.The wife’s income is derived from investments and child support. Otherwise she is dependant upon government benefits, as she states in her Financial Statement.
422.An adjustment of 2.5% to the wife would see a differential in net assets between the parties of $522,824. An adjustment to the wife of 10% would see a differential of more than $980,000. Weighing all the considerations I determine that an adjustment which sees the wife receive 59% of the parties’ assets would be a proper adjustment in the circumstances of this case. That adjustment would see the wife receive $553,580 more in net assets than the husband. The wife would also retain her superannuation.
The Just and Equitable Requirement
423.Having regard to the facts in this case I see the adjustment of net property 59% to the wife and 41% to the husband where the differential between the parties is $553,580 and where the wife retains the whole of her superannuation is just and equitable.
The Orders
424.The parties each provided summaries as to how the assets should be divided between the parties.
425.On the balance sheet the wife has the following assets and liabilities:
H Street, northern Sydney $ 936,250
E Road, northern Sydney $ 775,000
Toyota Corolla $ 5,000
Westpac Classic Plus $ 9,297
St George Case Management $ 2,339
Credit Lyonnais $ 472
Societe General PEL $ 6,507
Citigroup portfolio $ 48,803
Other shares $ 173,240
Funds in lawyers account $ 47,740
MBF Life savings bond $ 10,321
Jewellery $ 2,000
Luxembourg account for the child $ 236,489
Assets held by wife for the child $ 313,618
Paid legal costs. $ 165,485
Contents of H Street (marked as joint
on the balance sheet) $ 1,000TOTAL $2,733,561
LIABILITIES
Mortgage on E Road $179,960
Westpac visa $ 3,061
Personal liabilities $ 11,969
Unpaid legal fees $ 6,965
TOTAL $201,955
NET ASSETS RETAINED BY WIFE $2,531,606
BALANCE OF NET ASSETS $543,834
(This amount is the combination of the husband’s net assets together with $19 of joint assets.)
AMOUNT OF NET ASSETS THE HUSBAND TO RECEIVE AS HIS 41% SHARE: $1,260,930
AMOUNT TO BE PAID TO HUSBAND BY WIFE IN NET ASSETS: $ 717,096
426.The wife is required to pay the husband $717,096. Part of the payment can be met immediately by requiring the parties to transfer to the husband all of the funds standing to the credit of the Luxembourg account ($236,489 on the balance sheet). The wife will then be given two months in which to make the balance of the payment ($480,607) before orders will operate to require her to sell one of the pieces of real estate owned by her in northern Sydney.
427.The wife, in her application, sought an order that the husband be returned all items of furniture in her possession which had been acquired by the husband prior to the cohabitation. Such an order should be made.
428.On the balance sheet the contents of the H Street property are marked as “joint assets”. For the purpose of calculating the parties’ respective shares I have treated those contents as the wife’s property. An order should be made which sees her retain those assets, subject to the agreed return to the husband of any furniture he had at the date of cohabitation which is still retained in the H Street property. Similarly, I have treated the $19 in the Credit Lyonnais Compte account 52… as the husband’s property.
429.On 16 July 2009 I had my Associate send the following email to the legal representatives of the parties.
Dear all,
I refer to the above matter, and send the following on behalf of his Honour:
1. The account or accounts which are set out in item 40 of the balance sheet are attributed to the wife as the owner. Can I please have the precise details of the name of each bank account, account number and any other identifying character, which makes up item 40.
2. If trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?
3. Please provide an agreed figure to cover real estate agents commission and legal/conveyancing fees associated with each piece of property ([H] Street and [E] Road, [northern Sydney])
In relation to Questions 1 and 2, his Honour would like this to be addressed in the form of short written submissions to be emailed to me at your earliest convenience, or alternatively, be addressed orally when the matter is listed for delivery of judgement.
In relation to Question 3, his Honour requires this to be addressed in written form to be emailed to me by noon tomorrow Friday 17 July 2009.
The parties replied to the email on 17 July 2009 as follows:
Dear Ms [Associate]
On behalf of both parties, I provide the following answers to the questions raised in your email received yesterday. We apologise for the delay in responding.
1. The account or accounts which are set out in item 40 of the balance sheet are attributed to the wife as the owner. Can I please have the precise details of the name of each bank account, account number and any other identifying character, which makes up item 40.
The accounts in [the child’s] name comprised in Line 40 of the Balance Sheet are:
Commonwealth Bank, [northern Syney] BSB […] account […]
Credit Agricole Luxemburg Fixed Yield Deposit Account no: […]
2. If trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?
The wife submits Section 85A should play no part in relation to the assets held in the name of [the child] for the reasons advanced in paragraphs D20 to 27 of the Respondent Wife's Submissions prepared by Mr Millar of counsel and dated 28 November 2008. They are [the child’s] assets and should be retained by her for her benefit.
The husband submits the assets held in the name of [the child] are in fact assets of the parties, and may be applied in part satisfaction of his entitlement to property settlement for the reasons advanced in paragraphs C21(a), 29-35 and 119 of the Applicant Husband's Submissions prepared by Mr Lethbridge SC and Mr Gramelis of counsel and dated 7 December 2008.
3. Please provide an agreed figure to cover real estate agents commission and legal/conveyancing fees associated with each piece of property ([H] Street and [E] Road, [northern Sydney])
With respect to agents' commission currently the rate is between 2-2.3% of the sale price, and the Law Society of NSW provides the following conveyancing fees:
Property Agreed Value on Balance Sheet Legal/
Conveyancing Fees
per Law SocietyAgents' Commission
2 to 2.3%Total [H] Street $936,250 $3,208 $18,725 to $21,534 $21,933 to $24,742 [E] Road $775,000 $2,725 $15,500 to $17,825 $18,225 to $20,550
430.Should the wife fail to pay the husband the amount due to him under the orders (namely $480,607) then one of the northern Sydney properties she owns will need to be sold to provide those funds to him. I would imagine that the wife’s first preference would be to sell the E Road property. That property is currently rented out by the wife whereas she resides with the child in the H Street property. The E Road property has a value of $775,000 on the balance sheet. There is a mortgage of $179,960. The (mid point) expense of sale provided by the parties (as set out above) for the E Road property is $19,388. The net proceeds from a sale at $775,000 should be $575,652. The husband’s entitlement at $480,607 represents 83.5%.
431.An order will be made providing for a sale of the E Road property and after payment out of the sale expenses and the discharge of the mortgage the husband is to receive 83.5% of the proceeds and the wife the balance.
432.In an email reply to an invitation to the wife to make further submissions in relation to section 85A the wife’s solicitor advised that it was the wife’s preference for the E Road property to be sold (in preference to the H Street property) if it was necessary to satisfy orders of the Court.
I certify that the preceding four hundred and thirty two (432) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 28 July 2009
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Injunction
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