Marsh & Marsh & Anor
[2014] FamCA 325
•20 May 2014
FAMILY COURT OF AUSTRALIA
| MARSH & MARSH AND ANOR | [2014] FamCA 325 |
| FAMILY LAW – PROPERTY – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the wife did not appear at the hearing – Where the hearing had been previously vacated upon the wife’s application – Where the court was satisfied that the wife was aware of the dates for hearing – Where the court determined, given that the wife had proper notice of the hearing, that it was the second date fixed for hearing, the debt outstanding to the Commissioner of Taxation and the accruing interest along with the general desirability of finalising the litigation, that it proceed with the hearing, notwithstanding the absence of the wife – Whether just and equitable to alter property interests and rights – Consideration of factors under s 79 and s 75(2) of the Act – Where the court found that the husband’s initial financial contribution was significantly greater than the wife’s – Where the court found that the financial and non-financial contributions of the parties to their property and their contributions to their welfare of the family are regarded as equal – Where an adjustment, pursuant to s 75(2), of 15 per cent in the wife’s favour would be appropriate but having regard to the partial property settlement received by the wife, in the circumstances of this case, a division of the remaining assets as to fifty-five per cent to the wife and forty-five per cent to the husband is appropriate. FAMILY LAW – SPOUSE MAINTENANCE – Where the wife sought an order for spousal maintenance in the sum of $30 000 per month – Where there is no evidence that would support the making of such an application – Where the wife’s application for spousal maintenance is dismissed – Where the court was not prepared to discharge the current order for spousal maintenance. |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| Beven & Beven [2013] FamCAFC 116 Commissioner of Taxation & Worsnop (2009) FLC 93-392 Deputy Commission of Taxation v Kliman & Kliman (2002) FLC 93-113 Johnson and Johnson [1999] FamCA 369, NHC & RCH (2004) FLC 93-204 |
| APPLICANT: | Ms Marsh |
| RESPONDENT: | Mr Marsh |
| INTERVENER: | Commissioner of Taxation |
| FILE NUMBER: | SYC | 3464 | of | 2009 |
| DATE DELIVERED: | 20 May 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 13 May 2014 |
REPRESENTATION
| THE APPLICANT IN PERSON: | No Appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Champion Legal |
| COUNSEL FOR THE INTERVENER: | Mr Kasep |
| SOLICITOR FOR THE INTERVENER: | ATO Legal Services Branch |
Orders
That the orders sought by the wife in any application filed by her seeking a division of matrimonial property shall hereby be dismissed.
That the husband shall do all acts and things and sign all such deeds, documents and instruments as are necessary to transfer to the wife all of his right, title and interest in the property situate at and known as PP Street, G Town (‘the G Town property’) being all that land in Certificate of Title Folio Identifier … .
That the wife shall retain as her own property, absolutely, the company incorporated in New Zealand OO Company Limited and the asset of the company NN Street, CC Town, New Zealand (‘the CC Town property’).
That the wife shall indemnify the husband and keep him indemnified in respect to all liabilities of OO Company Limited to any bank or financial institution.
That the parties shall forthwith do all acts and things and sign all such deeds, documents and instruments as are necessary to place for sale and sell by public auction the property situate at and known as MM Street, K Town (‘the K Town property’) being all that land described in Certificate of Title Folio Identifier … .
That Mr TT of BBB Real Estate shall act on the parties’ behalf in respect to the marketing of the K Town property for sale and the parties shall do all acts and things and sign all deeds, documents and instruments as are required to place the property for sale by public auction.
That the parties shall agree within three (3) days hereof on the solicitor to act on the parties’ behalf on the sale of the K Town property and if there is no agreement within three (3) days thereafter, the husband shall be at liberty to nominate the solicitor to act on the parties’ behalf on the sale.
That the wife shall occupy the K Town property pending its sale, subject to:
8.1 maintaining the property in a neat, fit and proper state;
8.2 making the property available at all times as requested by the agent; and
8.3not to do any act or thing designed or likely to affect the sale of the property.
That the wife shall vacate the K Town property at least seven (7) days prior to the settlement of the sale.
That upon the sale of the K Town property the sale proceeds be applied in the following order and priority:
10.1such adjustment of rates, taxes and charges as is required to be paid on the settlement of the sale;
10.2agent’s costs and commissions;
10.3auction fees;
10.4legal costs and disbursements incurred on the sale;
10.5the payment of any land tax liability in the name of the husband;
10.6such sum as required to discharge all liability in the husband’s name to the Australian Taxation Office however arising; and
10.7the balance to be divided as to forty-seven per cent to the wife and fifty-three per cent to the husband.
That the wife’s application for spouse maintenance in the sum of $30 000 per month shall be and is hereby dismissed.
That the husband shall retain for his own use and benefit all and any distributions of payments received or to be received from the PP Group.
That each party shall otherwise retain such other property as is in their possession or their power and control at the date of the making of these Orders as their own property absolutely, including any bank accounts, motor vehicles, furniture, furnishings and the like.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & Marsh & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3464 of 2009
| Ms Marsh |
Applicant
And
| Mr Marsh |
Respondent
And
| Commissioner for Taxation |
Intervener
REASONS FOR JUDGMENT
Introduction
Ms Marsh (‘the wife’) seeks orders for a property settlement under s 79 of the Family Law Act 1975 and spousal maintenance in the sum of $30 000 per month.
The matter was listed for six days commencing 13 May 2014.
When the matter was called on for hearing the husband Mr Marsh (‘the husband’) and the Commissioner of Taxation (‘the intervener’) appeared. The wife did not.
The evidence establishes that the wife had received emails from the husband’s solicitors concerning preparation from the hearing. Documents had been left for the wife at her home by process servers. She was in court when the matter was fixed for hearing.
I am satisfied that the wife was well aware of the hearing date.
In open court the wife was telephoned at both her home phone number and her mobile number. Neither was answered.
This matter was previously fixed for hearing in February 2014. In December 2013 that hearing date was vacated on the application of the wife because she was acting for herself and was not able to be ready for a hearing in February 2014.
The intervener is the Commissioner of Taxation.
As at 8 May 2014 the husband’s liability to the Commissioner of Taxation for income tax penalties and interest was $8 545 531.06. Pursuant to a deed of settlement entered into between the husband and the Commissioner of Taxation on 8 April 2013 the tax debt of the husband will be extinguished if he pays a significantly lesser sum pursuant to that deed. As at 8 May 2014 the amount required to be paid to the Commissioner to extinguish the husband’s taxation liabilities was $2 371 686.69. The interest accruing pursuant to the deed is some $536.45 per day and the interest accruing on the husband’s running balance account is $89.27 per day.
Given that the wife had proper notice of the hearing, that it was the second date fixed for hearing, the debt outstanding to the Commissioner of Taxation and the accruing interest along with the general desirability of finalising the litigation I determined to proceed with the hearing, notwithstanding the absence of the wife.
The wife did not comply with the directions for the hearing of this matter. She did not file an affidavit dealing with the property issues or an up-to-date financial statement. Affidavits by her in relation to other aspects of the proceedings and earlier financial statements of the wife were referred to by counsel for the husband.
Brief background
The husband was born in 1961 and is 52 years old. He has a PhD in CCC science and is presently employed as an analyst.
The wife was born in 1962 and is 52 years old. She is not employed.
The parties were married in May 1997 and commenced to live together at that time.
They have one child of the marriage, a son, who was born in 1999 and is 14 years of age. He presently lives with his mother spending from after school Wednesday until before school Monday with his father in one week and then from after school Wednesday until before school Friday in the alternate week. He spends half of the school holidays with each parent.
The parties separated in early to mid-2009.
There have been extensive proceedings between the parties relating to the parenting of their son and interim orders dealing with spousal maintenance and interim property settlements which will be referred to in due course.
The property, liabilities and financial resources of the parties
Applicable Principles
According to guidelines established through a series of leading decisions the court is required to determine the following matters:
a)The assets, liabilities and financial resources of the parties to the marriage.
b)Having regard to the breakdown of the marriage if any, is it just and equitable to consider whether the alteration of the parties’ interests in their properties is just and equal.
c)All relevant contributions of each of the parties.
d)The matters in paragraphs (a) – (c) of s 79(4), must be identified and weighed against each other.
e)The matters in paragraphs (d)-(g) of s 79(4), particularly paragraph (e) which takes up, by reference, the provisions of s 75(2) must be considered and a determination made as to what, if any, alterations should be made to the entitlements of the parties earlier assessed on account of their contributions.
An order under s 79 must not be made unless the court is satisfied, in all of the circumstances, it is just and equitable to make the order.
Property of the parties
The Husband’s Interest in PP Group
The husband regularly receives income from what is described as ‘[PP Group]’. Between June 2009 and 25 March 2013 he received payments of $6 066 682.50 from PP Group.
Between the date of that affidavit and the date of his Financial Statement of 1 May 2014 he received four further payments totalling $1 045 000.
PP Group is difficult to describe. Very generally, it may be said to be a recreational activity performed as part of a club.
The husband’s involvement is as a CCC scientist. He said his role was to apply CCC science to the activity.
His relationship with PP Group commenced in the early 1990’s and continues today.
In the mid 1990’s the husband understood he had a two per cent interest in PP Group but from 1996 he understood his entitlement was a smaller percentage.
The number of participants in PP Group has varied although at one stage there were nineteen participants. The participants included other CCC scientists, computer programmers and computer software developers. The husband said in his affidavit filed 10 December 2013:
56.Each element that makes up [PP Group] is independent of each other element; so the [CCC science] is separate from the programmers and the programmers from the data input etc. No one person has knowledge of all aspects and therefore no one person can replicate the system.
The husband says that he has no knowledge of the calculations that lead to him receiving a distribution from PP Group or precisely what his entitlement is. He relies, in large part, on the person who introduced him to PP Group to deal with him properly. He said in the above mentioned affidavit:
89.I have always taken [Mr WW] on trust ever since we first started [the activity] together in about 1990 and am prepared to continue to do so. I am not in a position to bring about a change in the way [PP Group] operates. Given that: I have always received a regular distribution, that I have no documentation that establishes that I am a participant of [PP Group], and that if I was no longer a participant of [PP Group] and [was involved in the activity] personally I would be unable to achieve a financial result comparable to the distributions I receive, I have always taken the view that I will not do anything that will affect ‘the goose that lays the golden egg’.
Thus the legal nature of PP Group, its location, its assets, if any, and the legal entitlement, if any, of the husband is entirely unknown to the court.
The husband asserts that it is entirely unknown to him. It was anticipated that the accuracy of his assertions would be a major issue at the trial. Given the non-appearance of the wife the husband’s evidence remains untested and unchallenged.
As part of the settlement with the Commissioner in April 2013 a partnership was established in Australia to meet the requirements of the Australian Taxation Office. The partnership is called ‘[DDD Partnership]’ and does not trade. The payments to be made to PP Group members within Australia are paid into that account and GST is assessed and paid. The partnership then makes payments to the members.
Accordingly, it is not possible to identify any asset arising out of PP Group or its operation to be taken into account as property of the parties.
The Wife’s Property in CC Town, New Zealand
In October 2010 the wife, through OO Company Limited of which she is the sole director and shareholder, purchased a property at NN Street, CC Town in New Zealand (‘the CC Town property’). It is presently valued at $437 900 (after conversion into Australian dollars). For the purpose of these proceedings the value of the company is said simply to be the value of the property it holds.
On 22 September 2010 the company borrowed NZ$340 000 for the purchase of that property.
The wife has not disclosed the present state of the mortgage and the documents obtained upon subpoena from the Bank of New Zealand do not establish the current balance. Accordingly, the only course that can be taken is to take into account the full value of the mortgage. If it is converted to Australian dollars at an exchange rate of $1.08 (which I understand to be the conversion rate used for its value included in the balance sheet provided to the court by the husband) its value is $314 815.
The parties own a property at MM Street, K Town (‘the K Town property’) which has estimated sale costs of $100 000 that need to be taken into account.
On 2 September 2009 by consent, the court ordered the husband pay to the wife $140 000 and ‘that there be reserved to the trial judge in the property settlement proceedings the question of allocation of part or all of the sum as between maintenance, child support, interim property settlement and costs’.
On 4 November 2009, by consent, the following order was made:
13.That the husband shall pay to the wife by way of interim property settlement the sum of $700 000 (“the sum”) but on terms that the parties acknowledge and agree that at a final hearing of the proceedings for property settlement it shall be open to the wife to advance a case to the trial judge that part of the sum should properly be treated as spouse maintenance and/or child support (or funds applied to meet the joint obligation of the parties to provide for [the child B’s] proper financial support) rather than in satisfaction of her property entitlement and it shall be open to the husband to argue for contrary.
On 27 July 2011 Fowler J ordered the husband to pay to the wife $117 468 and ordered that ‘the true character of the payments referred to above as partial property settlement, maintenance, child support or costs be a matter reserved to the trial judge’.
These sums were paid by the husband to the wife.
The husband seeks to have these sums added back into the list of property and assets on the basis that they were in fact partial property settlements.
The preferable course is, if the payments have that character, to take them into account under s 75(2)(o) of the Family Law Act1975 (Cth) (Beven & Beven [2013] FamCAFC 116).
On 6 October 2011 and 4 March 2013 Fowler J ordered the wife to file affidavits identifying the use to which she put the funds so received. Affidavits were filed by her on 18 March 2013 and 1 May 2013.
The exhibits to the affidavit of 18 March 2013 are not available so the affidavit is of limited utility. In that affidavit the wife specifically denies using any of the funds received from the husband for the purchase of the CC Town property. Generally, the affidavit indicates that the funds were used for a variety of expenses. Precisely what those expenses were is not known.
The affidavit filed 1 May 2013 makes some amendments to the earlier affidavit.
The upshot is that many of the payments are simply described as cash payments.
In addition to the above payments the husband has paid other sums to or for the benefit of the wife.
On 27 July 2011, pursuant to an order of the court, the husband paid the wife $571 953 on account of the wife’s costs of and incidental to the proceedings.
Since 4 November 1999 the husband has paid the household expenses for K Town and G Town, health insurance for the family and motor vehicle registration and insurance premiums.
Pursuant to the orders of the court the husband has paid spousal maintenance to the wife.
From 2 September 2009 to 27 July 2011 the husband paid spousal maintenance of $2 600 per week – a total of $257 771.
From 4 June 2012 to 15 August 2013 the husband paid maintenance to the wife in the sum of $1 132 per week – a total of $98 936.
From 15 August 2013 to date the husband has been paying the wife maintenance in the sum of $832 per week. As at 11 December 2013 this was $13 906.
In his affidavit the husband described the sum of $117 468 referred to in paragraph 38 as being capitalised maintenance. That would explain the gap in periodic maintenance payments and periodic maintenance payments from July 2011 until June 2012. It is therefore accordingly appropriate to treat the sum of $117 468 as an order for maintenance.
Given the periodic maintenance provided by the husband, the expenses paid by him and the order for payment on account of costs it is appropriate to regard the sums of $700 000 and $140 000 referred to earlier as not being in those categories but having the character of a partial property settlement.
It will therefore be appropriate to take that into account under s 75(2)(o) in due course.
Property of the Parties
Thus, the parties lists of assets and liabilities as at the date of the hearing is as follows:
ASSETS
VALUE
MM Street, K Town
$4 250 000
NN Street, CC Town
$437 900
PP Street, G Town
$450 000
Husband’s funds at bank
$183 808
Audi motor vehicle (Husband)
$55 000
EEE Pty Limited
$1 536
FFF Pty Limited
$1 746
Personal property (Husband)
$42 500
Superannuation (Husband)
$23 421
Funds on deposit
$350 000
TOTAL:
$ 5 795 911
LIABILITIES
VALUE
Debt to Commissioner of Taxation
$2 371 686
Debt to Bank of New Zealand
$314 815
Costs of sale of MM Street, K Town
$100 000
TOTAL:
$2 786 501
NET TOTAL:
$3 009 410
The funds on deposit represent the net proceeds of the sale of a property of the parties at KK Town which was earlier ordered to be sold. The husband received $100 000 and the wife received $250 000. Both sums remain in the bank accounts.
sub-section 79(2) of the act
I must first determine whether it is just and equitable that there be an alteration of the property rights of the parties. This must be done by consideration of the relationship, its breakdown, if any, the property held by the parties and the basis on which it was held and used by them. The determination is not to be inflated with the consideration of matters arising under s 79(4).
In the present case I am satisfied that it is just and equitable to make orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. The basis on which the ownership of their property and the use of it, by reason of them being in a married relationship and living together, has ended and it is appropriate that their property interests are altered so as to meet their new needs and circumstances. The parties join in seeking such an order.
Section 79(4) factors
Contribution of the Parties
The marriage lasted some twelve years.
According to the wife’s Financial Questionnaire filed on 10 December 2010 at the time of the marriage she had an interest in a property at GGG Street, Suburb HHH (‘the Suburb HHH property’) the net value of $506 000. This value was derived using the 1999 sale price. She also said she had furniture and effects worth $20 000 and a car worth $10 000.
The husband’s evidence was that the property at Suburb HHH was owned by the wife with another person. He said he gave the wife $64 000 to purchase the other party’s interest in the property. These two accounts cannot easily be reconciled.
The parties agree that the Suburb HHH property was sold and the net proceeds applied to the purchase of the property at PP Street, G Town (‘the G Town property’).
The husband says that in order to undertake that sale $75 000 worth of renovations were undertaken to the Suburb HHH property. He said that $45 000 was required to complete the purchase of the G Town property which came from cash at the bank. He says that he has since spent $182 567 on renovations at G Town.
The husband had at the commencement of the marriage a property at LL Street, KK Town (‘the KK Town property’) which was unencumbered and valued at $700 000 together with $900 000 cash.
On any view of the facts, the husband’s initial financial contribution was significantly greater than the wife’s.
Throughout the marriage the husband received a large income from PP Group.
The wife did not work and did not receive an income. Throughout the marriage the wife worked as a home maker and parent. She was for a large part of the time the primary carer for the parties’ son who remains in her care.
Since separation the husband has continued to receive a significant income, the wife has not worked and has maintained the primary carer role for their son.
Taking these circumstances into account and the length of the relationship the appropriate finding is that the financial and non-financial contributions of the parties to their property and their contributions to the welfare of the family shall be regarded as equal.
Section 75(2) factors
Both parties are in good health and there is no reason to think that they will not continue in their present roles.
The husband has the capacity to receive and will receive a very high income into the foreseeable future.
The wife has not been employed throughout the relationship. Whilst there is no evidence as to her economic capacity from her it was not submitted by the husband that she had any particular economic capacity. She will retain the care of their son for some years.
Taking these matters into account, and leaving to one side the partial property settlement payments of $840 000.00 received by the wife, it would be appropriate to make an adjustment of fifteen per cent in favour of the wife so that she received sixty-five per cent of the assets and the husband thirty-five per cent of the net assets.
It then remains to consider the effect of the $840 000 received by the wife as a partial property settlement.
It was the husband’s position that if there were to be a division of the existing assets so that the wife received fifty per cent and the husband fifty per cent then, having regard to the partial property settlements, there should be no further adjustment.
Apart from possibly the interest in the CC Town property the wife seems not to have retained any benefit from the partial property settlements, although the destination of the funds is largely unknown. It was not suggested that she had acquired other property. The wife has also had the benefit of substantial other payments from the husband.
On the other hand, the husband’s financial circumstances remain darkly lit.
Taking into account all these factors, I consider that the appropriate adjustment in favour of the wife should be five per cent so that she receives fifty-five percent of the available property and the husband forty-five per cent.
Five per cent is approximately $150 000. The wife will receive this at the expense of the husband - a shift of $300 000. This is a considerable sum. It does, however, take into account the great disparity in incomes likely to be earned by the parties in the future.
I am satisfied that having regard to the partial property settlement received by the wife, in the circumstances of this case, a division of the remaining assets as to fifty-five per cent to the wife and forty-five per cent to the husband is an appropriate division.
Orders to be made
Fifty-five per cent of the assets remaining to be divided is $1 655 176.
The husband accepts that the wife should retain the G Town property and her interest in the CC Town property. She will retain the funds on deposit of $250 000.
There remains the issue of the K Town property.
The only way in which the Commissioner of Taxation’s debt can be paid is for this property to be sold and for the proceeds utilised to pay the income tax debt.
The issue is whether that burden should be borne primarily by the husband or by the parties together.
The Commissioner of Taxation correctly submitted that the protection of third party creditors has been described as ‘a part of the exercise of the jurisdiction under s 79 where it is in the interests of one or both of the parties to a marriage that there be such protection’ (Deputy Commission of Taxation v Kliman & Kliman (2002) FLC 93-113).
In NHC & RCH (2004) FLC 93-204 at paragraph [71] the court said:
As we read paragraphs 24 and 25 his Honour’s judgment, he appears to be saying that as a matter of principle only taxation debts in respect of income earned during the marriage should be allowed, and not those debts in respect of income earned after the marriage. In many cases this would be the just and equitable approach. However, in the present case where at least part of the income earned post-separation was being used for the support of the wife and of the children of both of the husband’s marriages, we do not consider the approach to be just and equitable. Accordingly, we consider that the instalment statements to September 2001 (being items 29 and 32) should have been treated as liabilities for which both parties should bear responsibility…
In Johnson and Johnson [1999] FamCA 369, as quoted with approval in Commissioner of Taxation & Worsnop (2009) FLC 93-392 at 83,221, the court said:
In our view the fact that the wife was or was not involved in the tax avoidance process which may lead to the imposition of penalties was only one consideration that his Honour needed to weigh up when determining liability for penalties as between the parties. The benefits indirectly gained by the wife in having the pool of assets otherwise increased as a result of the availability of funds which would have otherwise been paid out in tax also have to be considered.
In so far as the liability to the Commissioner of Taxation arises from the deed it is a post-separation liability. The running balance account for the September 2012 quarter is also a post-separation liability.
However, as readily appears from the above, the husband’s post separation income has been used to a significant degree in the support and maintenance of the wife and the child.
Further and importantly, the deed deals with the income tax payable by the husband for the years ending in 2005 to 2012. For a large part of that period the parties were married.
The deed provides that the outstanding tax liability which is presently standing in the sum of $8 545 531.06 will be reduced to the amount which is presently calculated at $2 371 686. The deed thus represents a very real compromise of the tax that should have been paid during four to five years of the marriage.
As I have said, however, since separation a large part that the wife and the child have been supported has emanated from this income.
It is, accordingly, appropriate that both parties therefore share in the burden of that tax liability both having received the benefits of the income. Interest has accrued pursuant to the deed because the wife did not consent to the sale of the K Town property to enable the agreed sum to be paid. She has continued to live in the property. It is also appropriate that she bear a proportion of the interest.
It will be necessary for K Town to be sold and after the costs of sale the amount then outstanding to the Australian Taxation Officer under the deed and the husband’s running account balance paid to the Commissioner of Taxation.
The balance is to be divided between the parties so as to give effect to the division of property previously determined.
Thus the wife will receive:
PP Street, G Town
$450 000
Equity in NN Street, CC Town, New Zealand
$123 085
Funds on deposit
$250 000
Total
$823 085
Thus in order to receive fifty-five per cent of the total net assets of $1 655 176 she needs to receive $832 091 ($1 655 176 - $823 085) from the proceeds of sale of the K Town property.
The husband will retain:
The Audi motor vehicle
$55 000
Funds at bank
$183 808
EEE Pty Limited
$1 536
FFF Pty Limited
$1 746
Personal property
$42 500
Superannuation
$23 421
Funds on deposit
$100 000
Total
$408 011
Thus in order to receive forty-five per cent of the remaining property he needs to receive $946 224 ($1 354 235 - $408 011) from the proceeds of sale of the K Town property. This differs from the amount derived by the husband in the balance sheet he tendered. A large part of the difference arises from the husband including in the assets to be retained by the wife the partial property settlements.
The ratio of $832 091 to $946 224 is 46.79:53.32 or approximately 47:53. The precise sale price of K Town is unknown. An appropriate order is that the wife receive 47 per cent of the net proceeds of that property and the husband 53 per cent. The result will be sufficiently close to the intended distribution.
On 12 December 2013 the following order was made:
That the applicant wife shall pay the costs of the husband and the Australian Taxation Office thrown away by reason of the adjournment as agreed or as assessed.
The husband submitted ‘we read that order as meaning that as and from the adjourned date of the proceedings that [the wife] should be obliged to pay the outstanding running interest on the balance outstanding by my client to the ATO’. He sought an order providing for the payment of that interest by the wife.
I do not agree. The order of 12 December 2013 is limited to costs and does not support the submission.
The wife’s application for spouse maintenance
The application of the wife sought spousal maintenance in the sum of $30 000 per month. There is no evidence that would support the making of such an application and it will be dismissed.
On 14 June 2013 an order was made that from 15 August 2013, pending further order, the husband shall pay the wife spousal maintenance in the sum of $832 per week. Having regard to the undisputed evidence that the wife has no other source of income and has the care of the child I am not prepared to discharge that order at the present.
Conclusion
The orders for the payment of the expenses in relation to the K Town property should cease upon its sale and any obligation of the husband to contribute to the G Town property should cease forthwith.
Taking all of the above matters into account, I am satisfied that the orders I propose to make are appropriate, that is to say, just and equitable taking into account all of the matters I have discussed under the heading s 79(4) as set out above. The orders meet, as best they can in the circumstances, the obligation under s 81 finally to determine the financial relationship between the parties and avoid further proceedings between them to the extent possible.
The orders, accordingly, will be as set out earlier in my judgment.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 20 May 2014.
Associate:
Date: 20 May 2014
0
2
1