Marley and Ormonde and Ors

[2019] FamCA 455

FAMILY COURT OF AUSTRALIA

MARLEY & ORMONDE AND ORS [2019] FamCA 455

FAMILY LAW – PROPERTY – Interim distribution.

Family Law Act 1975 (Cth) s 75(2), 79, 80, 117(2)

Medlow & Medlow [2014] FamCA 530
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Marley

FIRST RESPONDENT: Mr Ormonde

SECOND RESPONDENT: Ms Ormonde

THIRD RESPONDENT: Mr B Ormonde

FILE NUMBER: SYC 3012 of 2018

DATE DELIVERED: 3 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 24 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaum

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Ms Youssef

SOLICITOR FOR THE FIRST RESPONDENT: Harper James Law Group

COUNSEL FOR THE SECOND RESPONDENT: Self-Represented Litigant

COUNSEL FOR THE THIRD RESPONDENT: No appearance

Orders

1. Within 42 days, the de-facto husband do all acts and things and sign all documents necessary so as to place property located at E Street, Suburb F NSW  being the whole of the land contained in Folio Identifier … (“the Suburb F property”) on the market for sale on the following conditions:

   (a)       List the Suburb F property for sale forthwith with such agent as the de-facto husband may appoint and if the de-facto husband does not appoint any agent within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate any agent within seven (7) days thereafter;

   (b)       The Suburb F property shall be sold on such terms and conditions as may be agreed between the parties and failing agreement as determined by the agent;

   (c)       The reserve price shall be as determined by the parties jointly in writing and in the absence of such determination it shall be the price nominated by the agent;

   (d)       The de-facto husband shall cooperate in every way with the agent including (without limiting the generality of the foregoing):

   (i)        Making the key available to the agent;

   (ii)Allowing inspection of the Suburb F property as all reasonable times requested by the agent;

   (iii)Doing or saying nothing to hinder or prevent a sale being effected;

   (iv)Ensuring the Suburb F property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchaser; and

   (v)Signing all documents requested by the agent in relation to the listing for sale of the Suburb F property except a contract or agreement for sale which has not been authorised by the conveyancer have conduct of the sale.

   (e)For the purposes of the sale, the de-facto husband shall appoint a conveyancer within fourteen (14) days of the date of these Orders and if the de-facto husband does not appoint a conveyancer within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate a conveyancer within seven (7) days thereafter and the de-facto husband shall appoint that conveyancer to act with respect to the sale;

   (f)The de-facto husband shall authorise the agent and conveyancer to liaise with the de-facto wife and to provide copies of all documents in relation to the sale to the de-facto wife at her request.

2. The costs of the conveyancer’s fees shall be paid at first instance by the de-facto husband and the parties will equally share the costs of sale upon settlement.

3. On settlement of the sale of the Suburb F property, the proceeds of sale to be paid in the following manner and priority:

   (a)All costs and expenses of the sale including legal costs and disbursements, agents’ commission, advertising expenses and auction expenses;

   (b)The amount required to discharge the mortgage over the Suburb F property;

   (c)       The de-facto wife’s tax liability;

   (d)       The de-facto husband’s current tax liability;

   (e)$100,000 to be paid to the de-facto wife by way of interim property distribution pursuant to section 90SM;

   (f)Outstanding water, electricity, telephone, municipal rates and other outgoings and utilities in respect of the Suburb F property;

   (g)The balance held in a controlled monies trust account on behalf of all four parties by the de-facto wife’s solicitor with $1,117,000 for the second and third respondents and the balance to be held for the de-facto husband and wife.

4. Within fourteen (14) days after the Suburb F property has been listed for sale, the de-facto husband shall do all acts and sign all documents necessary to give written authority to the de-facto wife to notify the Australian Tax Office (“ATO”) that any payment received by the ATO in accordance with Order 3.d is subject to the following.

5. If following the payment of the amount in Order 3.d there is a credit in the husband’s name or an overpayment to the ATO as at and from the date the payment is made (“credit”), the husband shall within seven (7) business days of receiving written notice of the credit do all acts necessary to provide written notice to the de-facto wife specifying the amount of the credit.

6. The de-facto husband shall give written authority to the de-facto wife to liaise with the ATO as regards any credit that may arise in favour of the de-facto husband as referred to in Order 5.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marley & Ormonde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3012 of 2018

Ms Marley

Applicant

And

Mr Ormonde

First Respondent

And

Ms Ormonde

Second Respondent

And

Mr B Ormonde

Third Respondent

REASONS FOR JUDGMENT

1. This is an application by a de facto wife, seeking a raft of interim orders in an amended Application in a Case filed 5 April 2019 and a further amended on 5 June 2019. I will refer to the parties as ‘husband’ and ‘wife’ in this matter for simplicity, although I accept they were in a de facto relationship.

2. Sale of the matrimonial home and discharge of the parties’ significant debts, in particular tax debts, sale of motor vehicle 1 and distribution of the proceeds of sale of that vehicle to the wife, interim maintenance application, a child support departure application and dollar-for-dollar legal cost order or such other orders I might determine to make and disclosure. The disclosure issues were dealt with by consent.

3. The husband appeared with his fourth set of lawyers, who he had instructed, effectively, the week before the interim hearing and sought an adjournment. His mother, the second respondent, appeared unrepresented and supported her son’s application for an adjournment and his orders. The husband’s brother, who is the third respondent in this matter did not appear. He is overseas but I was informed that he, too, supported his brother’s position in this matter.

4. I refused the adjournment application. The husband had filed an affidavit, a Financial Statement and voluminous annexures to his Affidavit on 26 March 2019. He has been aware that the matter was listed on the issues in the wife’s application of 5 April for hearing before me on 25 June 2019 since the matter became before me on 5 April 2019, a period of ten weeks. However, the grandmother and brother’s claim to a percentage interest in the home by virtue of moneys advanced and their respective loan agreements has been pleaded in the matter.

5. For the grandmother, she asserts a 4.87 per cent interest in the former matrimonial home and the husband’s brother of 33.91 per cent interest in the former matrimonial home. I must be mindful of their interest in that property in the orders I make today.

6. The evidence for the wife is a follows:

   a)Amended Application in a Case filed 5 April 2019 and amended 4 June 2019;

   b)Financial Statement of 13 December 2018;

   c)Affidavits of 4 June 2019, 5 April 2019 and 13 December 2018 and an annexure bundle;

   d)Affidavit of Mr D, her boyfriend, filed 1 June 2019. Mr D is the wife’s boyfriend. He has paid her legal fees in the amount of $91,773 by way of a loan to her and the wife has exhausted Mr D’s funds.

7. The exhibits for the wife were:

   a)Wife’s exhibit 1, Affidavit of the husband’s brother, Mr C Ormonde, attaching a loan agreement between the husband and he and a call option, the first page of the contract for purchase of the former matrimonial home and the option notice; and

   b)Wife’s exhibit 2, records from the ATO tax portal of the husband’s tax debt currently standing $337,266, which is a debt attracting interest. That interest is perhaps $30,000 per annum, and varying depending on what the tax debt is. It was a little difficult to determine.

8. The husband’s current child support assessment is $33 a week for the two children in the wife’s care, who are Y and Z, aged eight and four.

9. For the husband:

   c)Response to the Application in a case filed 26 March 2019, financial statement, affidavit and annexures of the same date

   d)Husband’s exhibit 1, his lawyer’s Affidavit for the failed adjournment application.

10. Suffice to say, Ms Yousef for the husband did a valiant job for her client, having effectively lunch time to read the file, as the husband’s former lawyers have not released his file to him.

11. Mr Apelbaum of Counsel represented the applicant wife. I indicated I would not deal with the child support departure, given the husband said had not prepared for the matter, nor had the Child Support Agency been notified.

12. Of greatest concern to the court and the wife, is the ever-increasing tax debt of the husband and the wife’s judgment debt for her tax unpaid. When the judgement debt was entered it was $98,000. That has increased to $117,000 due interest on an unpaid tax debt.

13. From reading both parties’ material, these parties are in a parlous financial position and they were so at separation. The husband is committed to keeping the home. His mother and his brother support him in this endeavour.

14. The wife’s tender bundle provided documents from H Bank showing that the husband has an unconditional loan approval to refinance the home at $1.5m, which is sufficient to pay out the current mortgage of $1.35M and pay the wife’s tax debt.

15. The husband said any balance remaining should be split equally between them. The wife resists this application but, if I agree that the home is not to be sold and I do not rule that it should be sold, the refinance is the second alternative for her and she says she should receive whatever is left over after paying her tax debt.

16. The short relevant chronology is as follows.

17. The parties have 5 children: V, born in 1995, W, born in 1997, X, born in 1999, Y, born in 2010, and Z, born in 2016. The three older children, who are adults, live with the father, at the former matrimonial home. The younger two are, primarily, with their mother but Y spends six nights a fortnight with her Dad and Z four nights a fortnight.

18. The husband is aged 51 and the wife 45.

19. They commenced cohabitation in 1994 in the UK.

20. They separated, there is two weeks difference, the wife says 13 February 2017 and the husband March 2017. Nothing turns on that.

21. They cohabitated for 22 and a half, approaching 23, years.

22. The wife has a boyfriend, Mr D they do not live together. The husband has not re-partnered.

23. In 2012, the husband purchased in his sole name, the former matrimonial home at E Street, Suburb F for $2.3M. The purchase was facilitated by a loan secured by a mortgage of $1.35M, which is effectively the mortgage today. Although this is a matter of contention between the parties in relation to knowledge, it is clear that the family loan agreements are agreements between the husband and his family. The wife signed no such document. I will leave knowledge to another date.

24. The husband says – and this is supported by documentary evidence – that his brother paid a 10 per cent deposit for the Suburb F property, totalling $230,000, and then advanced a further $550,000 to assist in the purchase of the home. That is a figure of $780,000, which was applied to purchase the property.

25. The husband asserts that his mother – and again, this is supported by documentary evidence – advanced her son or perhaps both parties $112,000, which was applied to the purchase of the property.

26. The husband entered into deeds of agreement with both his brother and his mother in regard to their interest in the property and an option call agreement with his brother and they are before me.

27. The husband’s business. His occupation is a business manager. He had a business in the UK and one in Australia. In 2016, unfortunately, the husband says their largest client in the UK was lost to them and that had a significant negative impact upon his income. The husband set up an Australian business around that time called K Proprietary Limited and Z, the youngest child, is born in 2016.

28. The husband and his mother assert that his mother has, from May 2016 to November 2017, lent him some $222,600 to meet the family expenses. He and his mother entered into a call option to secure repayment to the paternal grandmother of the $222,600 advanced to the parties.

29. The wife asserts, at this stage, a lack of knowledge of these agreements. However it seems fairly clear to me that significant sums of money have come from the husband’s family to support the family, including his former wife.

30. The parties separate 13 February/March 2017. Nothing turns on that difference.

31. The parties sell the property in the UK, which was clearly a matrimonial asset, and net $328,080 and that money is paid into the K Pty Ltd’s bank account on 13, 14 and, I think, maybe, 15 November 2017 in three tranches but, again, nothing turns on that in particular.

32. The wife moves out of the former matrimonial home in December 2017, taking the younger children with her.

33. Difficulties in the parties’ financial arrangements ensue.

34. In April 2018, the wife asserts the husband ceases to pay moneys into an account, which she had used for her and the children’s benefit post-separation. The wife asserts the husband withdrew $75,900 from the business account on 9 April 2018.

35. The wife has received about $53,000 post-separation in dribs and drabs over the period. There is some poor behaviour and the husband retains the children in May 2018 and proceedings commence in this court when the wife files her application seeking interim property orders, together with final orders.

36. The parties agree on 28 May 2018 to a parenting arrangement for the children.

37. The husband lists his motor vehicle 1 for sale at $139,750 in July 2018 a car he says, was purchased by him with assistance of a loan of $50,000 from his brother.

38. A consent judgement is entered against the wife in the District Court on 15 November 2018 for an unpaid tax debt of $98,000 in relation to the matrimonial business and that debt is increasing.

39. The wife brings her first application to sell the property.

40. As I have said, the older three children live with their father in the former matrimonial home and the younger with their mother in rented accommodation, in Suburb G.

41. The younger children spend significant and substantial time with their dad. It is clear, however, the mother is still the primary carer of the children as she was during this 22 and a half year relationship and cohabitation.

42. Going to the assets. The husband sets out a balance sheet at paragraph 32 of his 22 May 2018 Affidavit and I accept that although this is getting on to a year old it is what I have.

43. I am not dealing with personal items, glassware and the like and those type of things and some of these items have been dealt with, only the major ticket, important valuable assets.

44. The former matrimonial home is worth $3.7M. There is an issue about the interest the paternal grandmother and uncle have in that property but that is its value and is based upon a valuation.

45. There are shares in the husband’s business.

46. Some first edition books, glassware, which the parties have divided.

47. There are cars in the husband’s possession a motor vehicle 1, a motor vehicle 2 and a motor vehicle 3. I am not sure what they are all worth today however the value is $90,000, $25,000 and $2,000 according the husband in his balance sheet.

48. There are significant debts set out in the balance sheet, which have not changed greatly.

    a)The first is the mortgage to J Bank, at $1.35M;

    b)Loans to the husband’s mother, $222,600 and brother $780,000;

    c)Husband’s unpaid liability to the ATO in 2018 was $580,000 and is now reduced to $343,000 and accruing interest;

    d)The wife’s judgement debt of $117,000 and accruing interest;

    e)The loan the husband asserts for the purchase of the motor vehicle 1 to his brother of $50,000;

    f)Some business debts, a personal loan from a friend;

    g)There was significant unpaid counsel rates, Telstra bills, etc.;

    h)There was an unpaid electricity account for $7,294 in 2018; and

    i)Legal fees, personal liabilities as director of the K Pty Ltd, agent’s commission, capital gains tax, on the sale of the UK property and despite settlement of the sale those issues may not yet have resolved

49. I accept that this is not entirely accurate but I am not dividing the matrimonial assets and some debts have decreased, which is pleasing. However, there is clearly an enormous debt situation, and the only asset we have is the former matrimonial home. Some of the debts are secured; some of them are unsecured, and they all have a significant impact on the value of the former matrimonial home.

50. At page 19 of the husband’s Affidavit of May 2018, he sets out the disposition of the sale of the UK property, which was a joint asset. The total netted was $328,000. Even with this payment, the husband asserts at paragraph 21 of his Affidavit that $13,000 is still owing to agents on the sale for the commission and there’s a potentially $30,000 capital gains and/or VAT tax.

51. The wife received, and I use this phrase, by drip feed $53,000 post-separation. She received the last tranche of money on 14 November 2017.

52. The husband received money from the sale of the UK property in the three tranches, receiving the last amount on 14 November 2017. The wife did not receive $53,000 from that as a lump, she received amounts of $1,000, $5,000, $2,000 etc. She received $25,000 on 30 November 2017; the smallest amount was $1,000 and the last payment to her was $5,000 on 3 March 2018 over a period of four to five months.

53. The husband was in total control of this money. He used the remainder of the money, if you look at paragraph 22.2 of his Affidavit, to, as he says to:

    a)$46,700 to pay the mortgage on the Suburb F property, clearly not paid from his income, according to his own Affidavit;

    b)Outstanding council rates of $5,743, clearly a matrimonial debt;

    c)Outstanding energy bill, $5,700;

    d)Tax of $6,000;

    e)Outstanding rates of $7,162. The parties had already paid a huge outstanding rate debt in February 2018 approaching $5,000 so they had some issues about rates;

    f)Repaid his brother $39,000;

    g)Took a trip to the UK for $3,500;

    h)Paid for food, groceries, etcetera, for himself and children unspecified;

    i)Utilities for the Suburb F property;

    j)A school trip for X;

    k)Petrol and insurance for his car;

    l)$5,319 to United Kingdom accountants;

    m)$27,500 to Sydney accountants he was using;

    n)Unspecified business expenses of the company K Pty Ltd;

    o)$5,000 for a car for his son on 7 May 2018; and

    p)Legal fees to his former lawyers of $15,500.

1. Turning now to his Affidavit of 29 March 2019, on this particular issue, and his disposition of the sale of the UK property.

2. The $5,000 was a car he purchased for his mum. He purchased a car for his son worth $7,000. The husband says this is something they had always done. He discussed it with the wife. That is not an agreed fact between them. That is a matter for final hearing.

3. There was an unspecified reduction in the wife’s credit card the husband said he paid. That was not set out in his March 2019 Affidavit. However, I had read somewhere previously there was a $15,000 debt, but I am not entirely sure. It was not specified, but there is some support that this was paid out.

4. It became apparent that the husband has actually paid $99,000 in legal fees, although not specified in the March 2019 affidavit. The parties have paid nearly $100,000 each in legal fees, the wife from borrowings from a friend, the husband from various sources, which is a matter for contest at a final hearing.

5. The amounts that the husband specified he spent in this affidavit total $250,000, and if I add the $53,000 the wife received from that money, I get $303,000 expenditure. The leftover of $25,000 was spent personal costs, perhaps, unspecified payments for the children, I am not sure. That is as best as I can work it out.

6. However, what this demonstrates to me is that the husband is in sole control of the parties’ assets and always has been, it seems. The UK property was clearly a matrimonial asset of the relationship and he has used this money in the main to fund his outgoings and to support the adult children, and only a minor proportion of it went on matrimonial debt. That is how I read his material.

7. I would have, perhaps, accepted the husband’s inability to meet his ongoing needs and his use the money from the UK, let alone pay maintenance to the wife, as she asserts today, however, his declared income in his Financial Statement is a conundrum for me. He says in his Financial Statement his income is $769 a week from his business and funds by way of directors’ loans, which he asserts in his Financial Statement is currently $256,267 per annum.

8. Initially, the husband submitted this fund of the director’s loan came about from the sale of the UK property in 2017, placed into the business, drawn out by him as a directors’ loan, and that is consistent with paragraph 150.1 of his April 2019 Affidavit.

9. However, in final submissions, the husband said his business, K Pty Ltd provides him with an income, an ongoing income of $235,148 per annum being the profit from his business. Paid to him by way of drawings as a directors’ loans, I do not cavil with that, and $40,000 in directors’ fees, a total income from his business of $275,000. That this is an ongoing, recurring income stream from the business, and not by way of a one-off capital injection from the sale of the UK property. So I have two entirely inconsistent propositions rattling around.

10. Therefore, the husband’s claim of expenses of $3,580 that he pays out each week set out in his Financial Statement, when his income is $769, and paying a mortgage at $2,000 per week, as he currently does, is explicable if his true benefit from his job and his business is $275,148 per annum. As the husband asserted, this is the resource his company provides him, and he told me this was the case and it is in his material, and I will accept and I will make that finding that the resource his business provides for him yearly is $275,148 consisting of two sums, directors’ fees of $40,000 and the remainder is by way of drawings as directors’ loans.

11. However, that finding, that evidence then makes it all the more difficult for me to accept he was unable to meet his expenses from income, as he said he was unable to do, and needed to expend $250,000 from the sale of the UK property on those very same expenses that his business, he now tells me has generated sufficient income to pay, mortgage, rates, utilities, etcetera. His declared income in the H Bank loan and to the Court should have been more than sufficient to meet his ongoing weekly expenses, and the UK property and the sale from that perhaps could have been used to reduce tax debts, or the mortgage, or pay back a brother or a grandmother, but it did not happen that way.

12. Thus, the husband, despite not being able to satisfy me what he did with his income in 2017/2018, and 2018/2019 and with the residue of the UK sale, now asks me to allow him to increase the parties’ indebtedness, in their home loan from $1.35M to $1.5M to pay off the wife’s tax debt. That is an increase of $150,000.

13. I note the husband does not declare loans to his mother or his brother in the H Bank application, and asserts his monthly expenses are $920 a month, yet, in the financial statement filed in this Court, they are $3,500 a week. He asserts his motor vehicle 1 is work $50,000 to the bank, yet, today, that it is damaged and not worth very much.

14. As clearly set out in the decision of Strahan[1], when the Court is determining an interim property distribution, if there are property proceedings on foot under section 79[2], as is the case here, funds may be made available to the parties, pursuant to the exercise of the discretion under section 80[3] of that Act, or 117(2)[4] of the Act, and the test under each power is somewhat different. In the decision of Medlow & Medlow[5] his Honour Loughnan J set out the relevant law at paragraphs 20 to 24.

    [1]Strahan & Strahan [2009] FamCAFC 166.

    [2]Family Law Act 1975 (Cth), s 79.

    [3]Family Law Act 1975 (Cth), s 80.

    [4]Family Law Act 1975 (Cth), s 117(2).

    [5]Medlow & Medlow [2014] FamCA 530.

15. When making an order under section 80, I must have regard to the requirements of section 79[6], 79(4)[7] and 75(2)[8] on a limited basis to ensure the orders proposed to be made are just an equitable. This principle is set out in paragraphs 87 and paragraph 90 of Strahan[9] where their Honours said three matters are relevant: “a position of relative financial strength on the part of the respondent” – that is the case here – “a capacity on the part of the respondent to meet their own costs” – it would appear the husband can, but, again, I am unclear – “and an inability on the applicant to meet their own costs”. It is clear that the wife earns a very limited income in comparison to that which the husband earns, and it is as set out in her Financial Statement. It is a modest amount and is not approaching $247,000 a year, as is he husband’s income.

    [6] Above, note 2.

    [7]Family Law Act 1975 (Cth), s 79(4).

    [8]Family Law Act 1975 (Cth), s 75(2).

    [9] Above, note 1.

16. In addition, and this is important, I must be satisfied at the end of the day there will be sufficient funds available to satisfy each party’s entitlement to property after having made an interim property distribution. This is highly relevant in this matter as we have competing interests of a second and third respondent whose interests must be protected in these proceedings, even if I distribute money to either of the parties.

17. The reality is that the husband has had control of significant matrimonial funds post-separation and has been able to fund his own legal fees to an amount of $99,000, whereas the wife had to borrow from a friend to do so. In addition, the husband earns income of, he tells me, $275,000 per annum from the business and the wife earns $600 per week from her own endeavours $31,200 per annum. She cannot fund legal fees, nor meet what she asserts are her reasonable needs or living costs, yet she has the primary care of two young children and receives $33 a week child support. So one can see the relative financial positions of the parties at present clearly favours the respondent and not the applicant.

18. The real concern I have in this matter is whether I can make any interim property distribution to the wife and ensure the second and third respondents’ claims are met. That is what is really weighing on my mind. I accept if the husband refinances the home, his mortgage payments will reduce by $2,000 a month, and that is an excellent thing. He reduces payments from $6,000 to $4,000. The wife’s tax debt will be paid out, and that is an excellent thing too, as interest is increasing on that debt as we speak.

19. However, the matrimonial pool will also be diminished and the husband’s tax debt will continue to grow with interest incurring. Additionally, his yet filed and unsigned tax returns, which were before me, show that when he files his 2019 tax return, he might have a further potential tax debt of $65,000, thereby adding to the $340-odd thousand it already is, and this would give him a staggering $403,000 in tax, if that be a correct assessment. I cannot say emphatically. The continuation of this unpaid debt together with increasing the mortgage will further diminish the matrimonial pool.

20. Doing the best I can with the evidence before me, having regard to my obligation to act to preserve matrimonial property, that is a founding tenet. Preserving matrimonial property does not mean you do not sell it. It may mean that you have to sell to preserve it.

21. To preserve the asset pool, determine the amount of money available for distribution, and doing the best I can, and determining, for my purposes, what the current asset base is:

    q)The home is worth $3.7 million;

    r)A mortgage of $1.35M;

    s)We have, I will use the word “grandmother’s claim”, if you do not mind that, madam for 4.87% of the matrimonial home, which is $112,000 together with $222,600 being other moneys advanced;

    t)The brother’s claim of 33.9 % interest in the home, a figure of $780,000;

    u)The wife’s tax debt, $117,000;

    v)The husband’s tax debt, $337,000;

    w)Total debts, $2,617,726.

22. I am not dealing with the parties’ personal debts, only the large debts, the ones that are clear and evident to me.

23. In addition, the brother asserts he has a personal loan with the husband of $50,000 for the motor vehicle 1.

24. Totalling the secured debt and the third party debts is $2,617,726, leaving $1,082,274 to divide between the husband and wife. That is what will be left over after I have included the third parties’ debts at their absolute highest. Not minimising them but maximising them.

25. The wife disputes the loans and call options of the grandmother and the husband’s brother; however, it’s clear: without the influx of funds from those two sources, the husband’s family, to fund the purchase of the home, an interest-free influx of significant sums, there may not have been a home. They would not have been able to purchase this particular home. This is a factor that the wife must take into account in the determination of these proceedings because it has been a significant assistance to the parties and their five children.

26. There is no doubt, ordering a sale of the home interferes with the grandmother and brother’s asserted claim of a percentage interest in the home; however, they are on notice that this is what this application was about, and they chose to run the matter as they did. Thus, it is an imperative that all the money they say they are owed is quarantined in any sale. It is most important. I must protect their interest.

27. The stark choice, as I see it is between selling the home, paying each parties’ tax debt, making an order for the wife for an interim property settlement, as she seeks, of $100,000 this preserves $900,000 or thereabouts after the sale for the husband and wife and preserving $1,114,000 to protect the second and third respondent’s claim. I can achieve that by ordering a sale.

28. If the wife receives $100,000 for interim costs and there will still be $900,000 left in a controlled moneys accounts to determine the parties’ interest and $1,114,000 in the controlled moneys account to protect the second and third parties’ interest in that property which is very important.

29. On the other side, allow the husband to increase the debt on the former matrimonial home by $150,000 that money paying off the wife’s tax debt, and the change used, as I see fit. Have the motor vehicle 1 sold, perhaps that money is given to the wife, or the husband or he pays the brother.

30. The downside of that option, option 2 as I will call it, is the husband’s tax debt will remain unpaid and continue to grow, and I have no evidence of his actions to ensure he does not receive a judgment debt, as has the wife. Had I had any evidence of his steps to address his and his wife’s tax debt, my decision may have been different, and it was clearly a huge debt in May 2018 of $580,000, and I see no evidence that it has been addressed except for a payment from the sale of the UK property of $6000 and that it has reduced to $343,000.

31. I have formed the view that in order to protect the four parties’ interest in this property, which is all there is and we have four separate peoples’ interest in it, it must be sold. The wife paid $100,000 to fund her legal costs. Both parties’ tax debts to be paid and the remainder held in a controlled money account in four all parties’ names with $1,114,000 being held to support or to provide for a potential successful claim of the second and third respondents and the remainder of the money to be determined as to be divided between the husband and wife, and I will so order. I will not entertain an application for spousal maintenance today having regard to the orders I propose to make.

32. That is the order of the Court and I will send a typed up copy to all of you today some time. Thank you very much. You’re excused.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 3 July 2019.

Associate:

Date: 16 July 2019