MANOLIS & MANOLIS
[2010] FMCAfam 573
•17 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANOLIS & MANOLIS | [2010] FMCAfam 573 |
| FAMILY LAW – Property – valuation of real property – initial contributions – distribution in specie or after sale. |
| Family Law Act 1975, ss.75(2), 79(4) |
| Applicant: | MR MANOLIS |
| Respondent: | MS MANOLIS |
| File Number: | BRC 7940 of 2008 |
| Judgment of: | Demack FM |
| Hearing date: | 11 May 2010 |
| Date of Last Submission: | 2 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 17 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Frizelle |
| Solicitors for the Applicant: | McVittie Legal |
| Counsel for the Respondent: | Mr Galloway |
| Solicitors for the Respondent: | Jones Mitchell Lawyers |
ORDERS
That the husband do all things and sign all documents necessary to transfer the vacant blocks of land in [A], Greece, identified as:
(a)[3…/1988]
(b)[5…/1991]
(c)[4…/190]
(d)[5…/1991]
(e)[6…/1992]
(f)[6…/1992]; and
(g)[4…/1989]
to the wife as her property absolutely and the husband shall thereafter relinquish any claim or interest in those properties.
That the wife transfer her interest in the property situate at Property Y in the State of New South Wales (with folio number to be determined once boundary readjustment has been lodged for registration by [S]) to the husband as his property absolutely and the wife shall thereafter relinquish any claim or interest in that property.
That the husband do all things and sign all documents required to transfer the 1991 [vehicle] to the wife as her property absolutely and the husband shall thereafter relinquish any claim to or interest in that car.
That the wife do all things and sign all documents required to transfer the 1999 [vehicle] to the husband as his property absolutely and the wife shall thereafter relinquish any claim or interest in that car.
That both parties do all things and sign all documents as requested by [S] in order to give effect to the boundary readjustment of the property at Property Y.
That both the husband and wife share equally in the cost of any outstanding bill rendered by [S] together with any bill to be rendered following these proceedings.
That the husband retain for his sole use and possession the chose-in-action in the form of a loan to Mr K.
That the money in the sum of EIGHT HUNDRED AND EIGHTY FOUR THOUSAND NINE HUNDRED AND EIGHTY SIX DOLLARS ($884,986) held in Trust be divided as follows:
(a)FIVE HUNDRED AND THIRTY ONE THOUSAND EIGHT HUNDRED AND EIGHTY TWO DOLLARS AND FIFTY SIX CENTS ($531,882.56) to the husband; and
(b)The balance to the wife.
That save and except for any property and/or financial resources dealt with pursuant to these Orders, each party shall retain all other property and/or financial resources in the respective possession, ownership or control of that party as at the date of these Orders.
That save and except for any liability dealt with pursuant to the terms of these Orders, each party shall be solely responsible for and meet payment of his/her liabilities and shall keep indemnified the other party from any liability howsoever arising thereunder.
That in the event that either party refuses or neglects to sign any document necessary to implement these orders within fourteen (14) days of a written request to do so, then pursuant to section 106A of the Family Law Act 1975 a Registrar of the Federal Magistrates Court of Australia at Brisbane is appointed to execute all documents in the name of that party.
IT IS NOTED that publication of this judgment under the pseudonym Manolis & Manolis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7940 of 2008
| MR MANOLIS |
Applicant
And
| MS MANOLIS |
Respondent
REASONS FOR JUDGMENT
During their twenty-six year marriage, this husband and wife amassed a sizeable pool through the establishment, operation and subsequent disposal of a number of highly profitable [omitted] businesses. This was the husband’s line of business before the marriage (he being eighteen years older than the wife) and at the time of their marriage.
The profits that they made were channelled into real property and into fixed deposits. Their common Greek heritages caused them to purchase land in [A], Greece, and to build a lavish home on one parcel of land there.
The husband is now 74 and ill health and age cause him to be retired. The wife is now 56 and is, likewise, retired. There is sufficient finances and property in the pool for them to each have a reasonable level of comfort.
They cannot agree on a number of issues.
They disagree on the level of initial contribution made by the husband in terms of assets in his possession at that time. The best evidence of that matter appears to be the judgment of Baker J in the litigation for property adjustment between the husband and his first wife which occurred in the same year as the parties’ marriage.
They disagree on the value of some real property: the former matrimonial home in Property Y, New South Wales; the house in Greece and the land in Greece. There are three valuations of the Property Y property. The first was done by a joint expert, Mr L, who valued the property at $500,000 at 28 November 2008. The second was commissioned solely by the husband of Mr Z. His valuation was $380,000 at 11 March 2009. Right at the date of hearing, the wife alone caused Mr L to do an updated valuation, which came it at $500,000 as at 30 April 2010. Both valuers were cross-examined.
The parties disagree on the value of the properly, house and separate land in Greece. The husband failed to attend to having them valued. The wife had them valued. The house is valued at €210,000 and the land is valued at €73,000. The husband does not agree with these values. He says that his daughter has offered to buy the house for AUD$700,000. Clearly, he says, it must therefore be worth more than the $304,200 that the present exchange rate[1] provides. And further, the husband says, you can’t trust valuers in Greece, they will tell you want you want to hear.
[1] The exchange rate at date of trial was agreed
The real property in Greece is in a town which the wife says has significance for her through childhood connection and extended family’s continued habituation. The wife says that the husband’s family is from 300km away in Greece. The husband says that the wife has no such connection with the town, and that the house means a lot to him. He wants it, and if he can’t have it, it should be sold, but not to the wife.
They disagree with respect to the husband’s dispersal of farming machinery and some livestock post separation and the values to be ascribed to these items. Further there is the issue of a debt owing to the parties by Mr K and how it should be factored into the equation.
So apart from not agreeing on the pool, the parties also cannot agree on the initial contributions, the percentage adjustments[2] or on how the property should be adjusted: whether the real property should be realised and the net proceeds distributed or whether it should be distributed in its present form.
[2] The wife seeks a 50/50 split, the husband initially sought 70% in his favour, although counsel submitted 60% in his favour
The evidence
The husband was a most difficult witness during the trial. He seemed to persist in having difficulty in hearing the clear and deep voice of the wife’s counsel although was able hear his own female counsel and my female voice. The wife’s counsel did not use difficult language or construct his questions in a way that seemed to the Court to be confusing, but the husband had difficulty being responsive. The husband, it should be noted, had no difficulty understanding when the wife’s counsel put to him that he wasn’t being truthful.
The husband was, overall, a most unhelpful witness. He wasn’t prepared to concede that his former wife had worked in any meaningful way or contributed anything like his contribution. He was poor with dates and times which extended even to recent events such as remembering the content of affidavits or other documents that he should have reviewed in preparation for trial.
The husband is in his seventies. He has some hearing loss. He speaks English with a strong Greek accent. I am not convinced as to whether his lack of specificity was artifice or memory loss.
The wife is eighteen or so years younger than her husband. She too speaks English with a strong Greek accent, but had no hearing difficulties. She was inclined to be forthright and determined in her responses to questions. She had a good recall of events, dates and transactions. She was quick to bristle against assertions that she had contributed anything less than the husband. Overall, the wife’s evidence was superior to the husband’s not least because she was responsive to the litigation process. It makes it very hard to prefer the evidence of the husband when he appears to be contemptuous of the process as well as of the wife.
Other than the valuers, and the parties, I heard from the husband’s adult son and daughter and also the parties’ former accountant. I formed the view that the husband’s adult daughter was too unhelpfully aligned with her father to give evidence which was reliable. The husband’s son had greater capacity to concede that the wife had made contributions and presented as less inclined to give evidence coloured by his personal views than his sister.
The parties’ former accountant was called by the wife to give evidence of his knowledge of the working arrangements in the parties’ businesses and as between themselves. I was impressed by the accountant who gave clear and responsive answers, many of which were about events from long ago. He had not been asked to bring any documents with him, and in any event, the historical records would be no longer kept, and had no difficulty with advising when he had no memory of a particular point.
Unless the context demonstrates otherwise, statements of fact are my findings.
The law
These proceedings are determined pursuant to s.79 of the Family Law Act 1975 (“the Act”).
The steps the Court is required to undertake to resolve such applications are as follows:
a)To identify and value assets and liabilities of the parties;
b)To assess the contributions of the parties under ss.79(4)(a), (b) and (c);
c)To consider the matters set out in ss.79(4)(d)(e)(f) and (g), which include the matters in s.75(2), so far as they are relevant, and to determine whether any adjustment should be made as a result to the contribution based entitlements;
d)To consider the effect of the findings and whether the order proposed as a result is just and equitable.
The pool
The following items and their values are agreed:
a)the net sale proceeds held in trust from the sale of a house in Tasmania, $884,986;
b)the wife’s Toyota Echo motor vehicle, $7,500
c)the husband’s Landcruiser motor vehicle, $15,000
d)the 1991 [vehicle] sedan at the house in Greece, $17,500
e)money in the wife’s control which came into her possession at separation, $1,046,000
f)money in the husband’s control which came into his possession at separation, $1,038,885.
The house at Property Y
As stated above, three valuations have been done and the two valuers cross-examined. Valuer Mr L was present in court when Valuer Mr Z gave his evidence. It is a pity that the parties had not sought of the valuers to confer before the trial. Mr Z had not seen the latest valuation by Mr L. Further, he had made some updating enquiries as a follow-up to his report when he was advised in January 2010 that the matter would be coming to Court, but he did not have those notes with him when he gave his evidence.
The differences between the two valuations appear to focus on:
a)the value to be ascribed to the land; and
b)the value to be ascribed to the improvements; and
c)the sales used to determine comparability.
It should be noted that Mr L was not afforded access to the property for the purposes of the second valuation. The husband lives at that property and he was openly hostile to Mr L when he contacted him to arrange access.
On a closer reading of the comparable sales used by the husband’s valuer, it becomes clear that the sales are, mainly, not sales at all. Some were listing prices and some were contract prices. Listing prices, it seems to me, are neither here nor there. They are no more than an expression of hope, even if the hope is modest.
I had greater confidence that the comparable sales referred to in the reports by Mr L were closer reflections of the subject property and were based on completed sales.
Further, in any event, it seems to me that the valuation of most use to the Court in determining the value at the trial date is the valuation closest in time to the trial. That valuation is the second valuation of
Mr L. I find the former matrimonial home to be valued at $500,000.
The real estate in Greece
There is no evidence before me, other than the husband’s seemingly baseless assertion, that valuer’s in Greece can not be trusted. There is no evidence before me that any child of the husband’s has offered to purchase the house in Greece for any money let alone AUD$700,000 and that this person is in a position to complete the sale. As that evidence stands, it is not evidence of the value of the house, and is no more than an assertion by the husband.
There is no evidence to contradict the valuation obtained by the wife for the two properties there, and they are the values which must be used for the purposes of this decision.
I note that the exchange rate on the date of trial was agreed.
Farming machinery and livestock
After separation, the husband disposed of some machinery and some cattle. He received a $56,300 plus GST (already remitted) for sales to [J]. The wife considers that this machinery should have been worth close to $70,000 and references a quote from [J] dated 9 May 2008 which is annexed to the wife’s affidavit filed 30 April 2010 as “EM6”.
Interestingly, the machinery sold by the husband to [J] were an Agriplough and Hardi Sprayer. This was on 30 June 2008 and was for the amount of $9,100 plus GST of $910.
The earlier quote[3] provided to the husband from that same business contained items which appear to have the same description:
· 9 Tyne Agroplough – Springtyne 5,000
· Hardie 600 litre 10m to boom foam marker – 600 pump 5,000
[3] The document is handwritten and I may have misunderstood some letters or marks.
The quote goes on to state:
Less commission 10%
add freight from farm to [omitted] (maybe $500 + GST)
(Add GST to prices quoted)
If in fact those quotes are for the items later sold to the same business, then it appears that the quotes were relatively close to the mark and not so far off it, that I should make any adjustment in the wife’s favour.
The machinery which was sold to [J] was a case tractor, rippers, slasher and a roller. I can see from the earlier quote from [J] that other items were quoted for, although I am unable to distinguish precisely which items are those which were sold. For example the quote has an item said to be worth $42,000 which is described as “JX100H + Pearson 20-36 FEL + 4 in 1 Bucket. The case tractor was sold for $40,000. I do not know if that is the same item.
The quote refers to rippers and rollers and a slasher. The IHD 210 Howard slasher was quoted at $4,000, and a slasher was sold for $4,000. Perhaps it is the same thing. I do not know. There is another slasher described as C/DAX ATV Slasher Mower Tow behind 3’6” 10hp quoted at $2,200.
In any event, I have no evidence to help me establish what was what. There is a broken digger at the former matrimonial home which is apparently good for scrap only and a plough which has gone to the dump.
The husband has had the sole use of the funds which he has derived through the sale of the plant and equipment and I am satisfied that the amount of $56,300 should be added back into the pool.
With respect to the sale of cattle, it appears clear that some cattle were sold prior to separation when the parties had subdivided the block on which the former matrimonial home sits. Since at least her affidavit filed 8 September 2009, the husband has been on notice that the wife states that at separation, there were 35 head of cattle left. The husband’s evidence about this issue is contained in his affidavit filed 7 May 2010 at paragraph 95. It reads:
On ? 2007 and 14 March 2008 [Ms Manolis] and I sold ? head of cattle, being all the cattle on the property at Property Y through [R] for the amount of $. Annexed hereto and marked with the letter “K” is a copy of those invoices.
That evidence is clearly incomplete and is of limited value.
Annexure “K” is two documents from [R] to Mr & Ms Manolis one dated 14 March 2008 and the other dated 5 December 2007. The net sale proceeds in March 2008 were $86,695.38, with the average price paid per head for cows being $556.92, and for cow & calf being $704.06. In December 2007, the net sale proceeds had been $35,440.14 with the average price paid for vealers being $336.78.
It is submitted on the husband’s behalf that the husband’s evidence includes that 15 cows were left on the property each with an approximate value of $300.
There is no evidence before me from which I can satisfactorily conclude how many head were left on the property at separation. I will use the wife’s figure of 35 head of cattle as the husband has failed to take the opportunity long open to him to provide real evidence as to movement and sale of cattle since separation. I will use the average price paid per head for cows by the sale yards in March 2008 as their value. That is an amount of 35 x $556.92. I will add that amount of $19,492.20 back into the pool.
Loan to Mr K
In November 2008, the husband directed the wife to organise a loan to a friend of the husband’s in the order of $80,000. That was done. There is no loan documentation.
The wife says that the loan has not been repaid and that, with interest, there would be some $200,000 in indebtedness.
The husband says that all but $10,000 of the debt has been repaid to a bank account in Greece, although he is unable to corroborate this assertion with any documentation.
I am satisfied that the parties loaned the money to Mr K and that the amount loaned was $80,000. In the absence of loan documentation, I am unable to say what interest, if any, was payable.
In the absence of proof that any money has been repaid, as asserted by the husband, I find that the money is outstanding and should be added as an asset of the parties.
The pool – outcome
I find the pool of assets to be taken into account to be:
a)the net sale proceeds held in trust from the sale of a house in Tasmania, $884,986;
b)the wife’s Toyota Echo motor vehicle, $7,500
c)the husband’s Landcruiser motor vehicle, $15,000
d)the 1991 [vehicle] sedan at the house in Greece, $17,500
e)money in the wife’s control which came into her possession at separation, $1,046,000
f)money in the husband’s control which came into his possession at separation, $1,038,885
g)the house at Property Y, $500,000
h)Manolis house in Greece €210 00, $304,200
i)Vacant land in Greece €73, 000, $105,700
j)add-back of machinery disposed of by husband, $56,300
k)35 head of cattle in husband’s possession at separation, $19,492.20
l)loan outstanding to Mr K, $80,000
There are no liabilities for inclusion in this equation. The total pool is $4,075,563.20.
Initial Contributions
The husband’s business and the date of cohabitation
The wife asserts that she was involved in the husband’s business activities from the commencement of cohabitation in 1980. The husband says that he did not even know the wife when he commenced [V] Pty Ltd[4].
[4] Para 17 of husband’s affidavit of 7 May 2010
The husband’s first marriage ended in February 1979. The wife says that the parties commenced their relationship in early 1980 at [omitted], New South Wales and that in between his marriage and their relationship, the husband had had a brief period of cohabitation with another woman of about a month’s duration. The husband says that the relationship with the other woman lasted for around a year and that he and the wife did not commence cohabitation as much as two years before their marriage. The wife’s evidence about the length of the husband’s intervening relationship included that the husband was a difficult man to live with and that is why that relationship was so short lived.
Interestingly though, at the time the wife says that the relationship commenced and she and the husband (-to-be) were working together on the establishment of the [V] business, the husband and his first wife were in the Family Court of Australia before Justice Baker. The trial dates were 6 and 7 May 1982, and 10 to 12 August 1982. Judgment was delivered on 30 September 1982. These parties married on [date omitted] 1982. There is no mention[5] of the husband’s new wife in the judgment of Baker J.
[5] Section 75(2)(m) of the Family Law Act in 1982 provided – if the party whose maintenance is under consideration is cohabiting with another person – the financial circumstances relating to the cohabitation;
From the bottom of page 16, the judgment reads:
The husband for his part invested the $40,000 which he received in a new company which he now conducts under the name or style of [V] Pty. Limited in association with one Mr S. I am satisfied on the evidence that the husband has the controlling interest in this company. In an affidavit sworn on the 5 May 1982 the husband gave details of the manner in which he would have me believe the above moneys had been spent. Whilst I am satisfied that the husband has expended substantial sums of money in setting up what was in effect a new business, I am also satisfied that the business has considerable potential.
When one looks at the evidence of the sales which the business makes and the cash flow which it produces, not only through the Company’s bank account, but also through the husband’s private bank account, it is readily apparent that the business has become quite successful and will become even more successful, once all [omitted] machines are in full operation.
His Honour had earlier explained the source of the $40,000 as being from [C] Pty. Limited, the company of which the husband and his first wife had been part owners, commencing the business in 1975 and expanding it in partnership with others from 1977. In 1979 or 1980:
…
There were disagreements between the various shareholders in the company and eventually the husband demanded that the company pay him the amount of his Loan Account which stood in the books of the company as at the 30 June 1980 at $51,550. The husband obtained payment of an amount of $40,000 in July 1980 and thereafter severed his connection with the company, although he continues to hold his two ordinary shares and claims the company still owes his $11,550.
…
The only evidence before me as to the parties respective interest in [C] Pty. Limited is their entitlement to a Loan Account in that company. As I have said the amount of each party’s Loan Account was $51,550. The husband obtained $40,000 of this sum and has made a claim against the company in respect of the balance. The evidence of Mr. P, the Company’s Accountant, however suggests that [C] Pty. Limited is merely an empty shell and therefore the husband’s shares nad [sic] Loan Account have no value.
Baker J mentioned in his judgment[6] another source of capital for the husband’s new business: the matrimonial home was “… the subject of a mortgage to the Commonwealth Trading Bank to support a guarantee of $1,200 in favour of the [omitted] County Council on behalf of [C]…”
[6] Exhibit 5
I consider that these findings by his Honour as to the husband’s financial position at the time of trial are the best evidence of the husband’s financial contributions at the commencement of these parties’ marriage. Where the husband states in his material[7]:
[7] Paragraphs 16 and 17 of the husband’s affidavit filed 7 May 2010.
16. In mid 1980 I sold my share in [C] and after all expense were paid, I retained $400.000.00.
17. When I sold [C] and established [V] Pty Ltd I did not know [Ms Manolis].
It seems to me that he is incorrect. The evidence as to the money realised from [C] was clearly established by Baker J. I am satisfied that these parties commenced their relationship in 1980 and married in 1982. It was during this period that [V] was being established and the wife was there.
The wife came into the marriage aged 28 years. The husband was then aged 46 years. It appears reasonable to consider that the older person may have amassed more personal wealth than the younger person.
The wife came in to the marriage with modest savings in the order of $17,500 and very modest possessions. She was working part time in [omitted].
Contributions during the marriage
There are no children of the marriage. From time to time, some of the children of the husband would live with the parties and financial support was provided to the children, for the most part, through the payment of particular expenses or gifts.
The husband’s manner of operating his successive [omitted] businesses appeared to be to build up a business and then sell it, achieving substantial profits. He would then effectively retire for a period before commencing another similar business. Through this process, the [V] business was sold in 1986 for approximately $800,000. That money was used to travel to Greece and to build the house now known as [Manolis] House, and to purchase the vacant blocks of land in Greece, which are also still part of the pool. In 1992, the next business was established: [T]. Two further [omitted] businesses were established over the years: [D] and [M].
The wife asserts that both she and the husband worked in the various businesses together over the years. The husband denies that to be the case and says that he was not only the driving force behind the businesses, but that it was his particular skill and business acumen that made the successive business the grand successes that they were and which allowed he and the wife to have a pool of assets in the order of over $4,000,000.
It appears clear, that other than for a short period during the running of [T], the ownership (or part thereof) was never in the wife’s name.
The husband was so dismissive of the wife’s contribution to the businesses and her contributions generally to the marriage that his evidence is of little use to me. His inability to answer clear questions reflected less on his deteriorating hearing and more on his contempt for his former wife.
The wife annexed to her affidavit a loan document which demonstrated that in December 1982 (the same year as their marriage) $120,000 was borrowed. The wife says this money was used in the [V] business. The loan was secured against the husband’s sister’s house and was discharged in July 1985, before the [V] business was sold in 1986. It is unclear to me as to why the husband refused to read this document at face value and failed to accept that the money was borrowed as it was needed for use in the business. It seems to me that the fact that his sister was prepared to have her house used as security for this loan amounts to an indirect contribution by the husband.
The husband’s son, [X], worked in the businesses when he was younger. He now has his own business. His evidence included that both Dad and [Ms Manolis] worked hard in the business.
The parties’ long time accountant gave evidence. The wife was the person who he referred his questions to and who provided him with the paperwork that he needed for the preparation of tax returns and the like. He saw both of them working in the business. The wife worked the office and the husband worked the physical side of the business.
It seems to me that the husband’s attitude towards the business and the parties’ respective roles was one determined through gender. The wife was expected to attend to the household tasks and to do the office work for the business. The husband was expected to do the physical work at the business and be the maker of the business decisions.
This was a long marriage. I cannot see that any evidence before me which supports an argument that the husband has any particular entrepreneurial skills in the way of exceptional business skills. I accept that the husband was a hard worker and that good money has been made by the parties in their [omitted] businesses. I do not consider that the wife has been quietly sitting by and not contributing, let alone, the suggestion by the husband that she was more interested in shopping and spending the money, than in working.
I consider that parties’ respective contributions during the marriage, direct and indirect, financial and non-financial, to have been equal.
Contributions post-separation
Since separation the husband has attended to payment of some matrimonial debt. The list in set out at paragraph 97 of his affidavit filed 7 May 2010. It contains 20 itemised payments, ranging from as little as $25 for irrigation supplies and peaking at $5,664.40 to the local authority in Tasmania where they had a house. The total amount was $28,534.80. Considering the husband has had the sole use of the former matrimonial home since separation, and has disposed of assets for his own benefit, I do not consider that the contribution by him of less than $30,000 in the attending to the payments of necessary bills to be of any moment.
Future needs
The husband is now aged 74 and is retired. He has adult children and he has grandchildren.
He is in poor health, with includes a very high risk of progressive kidney disease as well as being in a high risk category of suffering a cardiovascular event within the next five years.
The wife is aged 56 and considers herself, inexplicably, retired. There are no known reasons as to why the wife should not be continuing to find a manner in which to support herself financially.
I consider that the wife has a longer life expectancy than the husband, due to the age difference and the husband’s known health issues. It seems to me that the parties’ positions cancel each other out – the wife may have a longer life ahead of her, but she has the personal resources to find a manner in which she could support herself, should she so choose.
There will be no adjustment made for either party’s future needs.
Discussion about proposed methods of adjustment – Justice and equity
This long marriage achieved substantial material outcomes for these parties. The husband’s initial contribution, although not of the magnitude which the husband erroneously asserts, was a springboard for the successful sale of the [V] business only four years into the parties’ marriage. With the husband’s initial contribution of the money from [C] and his knowledge of the [omitted] business coupled with having swiftly moved from the end of [C] to the starting of [V], the husband provided a solid base which has not been weathered away with the passage of time, but which has grown and grown. I consider that an adjustment should be made to the husband in the order of 5 per cent for that contribution at the outset the thread of which is able to be seen in the parties’ prosperity throughout their long marriage.
I consider all other contributions to have been equal and have already determined that there should be no adjustment either way for any future needs.
Both of the parties seek to present themselves as being the appropriate recipient of the house and land in [A] in Greece. I am satisfied that the wife has family in the area and that she attended school there as a child. I am also satisfied that the reason that the parties purchased land there arose from the wife’s connection to the area – and not the husband’s connection – and not for some other random purpose. The husband’s position that the house and land in Greece should be sold appears to be based in his contempt for the wife, rather than some matter of which the court should take notice. The real property and car in Greece will go to the wife. The wife will then have assets in her possession or control which amount to $ 1,480,900.
The husband will have the former matrimonial home, where he has lived since separation. Before the title can be transferred the boundary adjustment has to be completed. Both the husband and the wife will have to jointly and equally pay any remaining costs for that venture.
The husband will have the loan to Mr K which he may deal with as he sees fit. The husband will then have assets in his name which amount to $1,709,677.20.
The money held in trust will be divided so that the parties’ respective shares of 55 per cent to the husband and 45 per cent to the wife will be achieved. The husband will receive $531,882.56 and the wife will receive the balance of $353,103.44. Each will otherwise keep the assets in their care or control.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Demack FM
Associate:
Date: 17 June 2010
Compare that with the present day s.75(2)(m) – if either party is cohabiting with another person – the financial circumstances relating to the cohabitation.
The provision at the time of Baker J’s decision did not require his Honour to consider whether the potential payee of maintenance was cohabiting. The fact that the husband had remarried was of no moment to his Honour’s decision.
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