McBurney and McBurney

[2016] FCCA 100

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCBURNEY & MCBURNEY [2016] FCCA 100

Catchwords:
FAMILY LAW – Property proceedings – long marriage – post separation contributions – husband’s conduct – orders as sought by the wife.

Legislation:

Family Law Act 1975 (Cth), s.106A

Applicant: MS MCBURNEY

Respondent: MR MCBURNEY

File Number: MLC 8054 of 2013

Judgment of: Judge Hartnett

Hearing date: 4 June 2015 and 21 September 2015

Delivered at: Melbourne

Delivered on: 29 January 2016

REPRESENTATION

Counsel for the Applicant: Mr O'Shannassy

Solicitors for the Applicant: O'Farrell Robertson McMahon

Counsel for the Respondent:

The Respondent:

Mr Testart (4 June 2015)

In Person (21 September 2015)

ORDERS

1. All previous Orders are discharged.

2. Within 30 days of the date of these Orders, the husband transfer to the wife all his right title and interest in the property situate at Property W, in the State of Western Australia being the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property W property”).

3. In the event the husband refuses or fails to comply with Order 2 herein, the Registrar of the Federal Circuit Court at Melbourne is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to sign any deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument.

4. Contemporaneously with the payment in Order 13 herein, and subject to that Order, the wife transfer to the husband all her right title and interest in the property situate at Property S, in the State of Western Australia being the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property S property”). Only upon such transfer shall the husband be permitted to occupy the property.

5. Within 30 days of the date of these Orders, the husband vacate the former matrimonial home situate at Property O in the State of Victoria being the land more particular described in Certificate of Title (omitted) Folio (omitted) (“the former matrimonial home”). He is to leave the former matrimonial home in a tidy and maintained state and is not to damage, in any way whatsoever, the property.

6. The former matrimonial home be placed on the market for sale forthwith.

7. The wife have the sole responsibility for the sale of the former matrimonial home and for the purpose of the sale:-

   (a)the reserve price be fixed at $450,000 for a period of 60 days and thereafter at $440,000 or as otherwise agreed in writing between the parties, and failing agreement, within seven days of the wife requesting same from the husband, then the reserve price shall be determined by the President for the time being of the Real Estate Institute of Victoria; and

   (b)the wife be solely responsible for the conduct of the sale including appointing a real estate agent at her discretion and arranging for the conveyancing of the sale.

8. Upon the sale of the former matrimonial home having being completed the proceeds of the sale be distributed as follows:-

   (a)firstly, to pay all costs, commissions and expenses of the sale including the estate agent costs, the conveyancing costs and any advertising costs;

   (b)secondly, for payment and discharge of the (omitted) Bank Line of Credit Account secured over the Property W property and the Property S property;

   (c)thirdly, for payment and discharge of the (omitted) MasterCard secured over the Property W property and the Property S property; and

   (d)fourthly, the remainder to the husband and wife in equal shares.

9. The husband shall sign all documents necessary to be signed by him for the sale of the former matrimonial home including but not limited to the authority to the agent, the Contract of Sale, the Transfer of Land, the requests to discharge the mortgage, and within 72 hours of being requested to do so by the wife in writing.

10. In the event the husband refuses or fails to comply with Order 9 herein, the Registrar of the Federal Circuit Court at Melbourne is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to sign any deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument.

11. Within 30 days of the date of these Orders the wife do all things necessary to transfer her entitlements in the self-managed superannuation fund “(omitted) Superannuation Fund” to the husband absolutely.

12. The wife retain her interest in her (employer omitted) Superannuation Fund and the husband retain his interest in his (employer omitted) Superannuation Fund.

13. The husband pay to the wife $288,390.50 (“the payment”) within 120 days hereof. In the event the husband fails to make the payment within 120 days hereof, then the Property S property shall be forthwith placed on the market for sale.

14. The wife shall have the sole responsibility for the sale of the Property S property and for the purpose of the sale:-

    (a)the reserve price be fixed at $500,000 for a period of 60 days and thereafter as agreed in writing between the parties, and failing agreement, within seven days of the wife requesting same from the husband, then the reserve price shall be determined by the President for the time being of the Real Estate Institute of Western Australia; and

    (b)the wife be solely responsible for the conduct of the sale including appointing a real estate agent at her discretion and arranging for the conveyancing of the sale.

15. Upon the sale of the Property S property having being completed the proceeds of the sale be distributed as follows:-

    (a)firstly, to pay all costs, commissions and expenses of the sale including the estate agent costs, the conveyancing costs and any advertising costs;

    (b)secondly, the sum of $288,390.50 to the wife, together with interest on the payment or any part thereof from the date of the payment to be made in accordance with Order 13 of these Orders until the date of actual receipt of the payment at the rate prescribed in the Family Law Rules 2004 (Cth), and the remainder to the husband.

16. Liberty to apply on short notice in respect of the enforcement of, or operation of, these Orders.

17. Otherwise each party retain those items of property, real and personal, in their respective ownership.

18. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym McBurney & McBurney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8054 of 2013

MS MCBURNEY

Applicant

And

MR MCBURNEY

Respondent

REASONS FOR JUDGMENT

1. The wife filed her Initiating Application seeking property orders on 27 June 2014. The matter was first listed for final hearing in October 2014, then March 2015, June 2015 and ultimately September 2015. The parties’ financial position remained in a state of flux throughout with orders made by consent from time to time to advance this matter. One of the difficulties for the parties has been their inability to sell two real properties in (omitted) in Western Australia. Those properties are situate at Property S, in the State of Western Australia and Property W, in the State of Western Australia (“the (omitted) properties”). Both properties are subject to an encumbrance being a (omitted) Bank Line of Credit and a (omitted) Mastercard. Both properties sale may result in capital gains tax being payable. Neither party wished, initially, to retain either of these properties. That altered as the proceedings progressed in particular given the husband’s conduct in respect of these properties, to which I shall refer later in these reasons. Such conduct resulted in the wife seeking to retain one of the properties with the husband to retain the other with each to pay individually any capital gains tax that may arise in the future.

2. The husband sought ownership of the former matrimonial home known as and situate at Property O, in the State of Victoria and more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (“the former matrimonial home”). The wife sought its sale to pay out the parties (omitted) Bank Line of Credit and MasterCard debt secured over the (omitted) properties. The husband sought retention of the assets of the self-managed superannuation fund, the (omitted) Superannuation Fund, before suggesting, near the end of the proceedings, that the three real properties, held in the self-managed superannuation fund and which are situate in (country omitted) could be sold, with two thirds part of the proceeds being apportioned equally between the parties but with the husband to receive 100 percent of the net proceeds of the sale of the third property. The wife did not object to the husband’s retention of the assets of the superannuation fund, but sought a payment to her of one half of the fund’s value inclusive of the disputed real property being the real property purchased by the husband post separation in September 2012. Despite the parties separation being some four years ago, no resolution has been able to be achieved between the parties, and in the main as a result of the husband’s obstructive and destructive behaviours. They have caused the wife unnecessary prolongation of the proceedings and some cost.

3. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

History

1. The wife was born on (omitted) 1951. She is now aged 64 years. The husband was born on (omitted) 1950. He is now aged 65 years. The parties commenced their cohabitation upon their marriage on (omitted) 1972. They separated on (omitted) 2012 after just over 39 years of marriage. They divorced on 28 October 2013. At trial, the wife was employed as a (occupation omitted) for the (employer omitted), having previously been a (occupation omitted). That contract of employment was due to expire at the end of January 2016. The husband had just ceased to be employed as a (occupation omitted) in the (omitted) industry in Western Australia where he had been so employed for a number of years. Both parties have various skills and are each capable of employment. But both are nearing retirement age and both have worked long and hard.

2. Following separation the husband remained in occupation of the former matrimonial home although he was mostly in Western Australia with his employment. The last two years have seen him more so in the former matrimonial home. The wife left the home and lived in rental accommodation for over a year before purchasing a home for herself to live in at Property H in the State of Victoria. The purchase price was $375,000. The wife financed the purchase through a mortgage from the (omitted) Bank of $301,000 and a $150,000 loan advanced to her by her brother. This borrowing also enabled the wife to pay stamp duty and other expenses at that time and purchase furniture. This asset was acquired after the parties’ separation and with no monies applied that were attributable to the parties cohabitation period. The monies advanced by the wife’s brother are required to be repaid to him. The agreed value of the property for the purposes of these proceedings is $410,000. The wife has minimal equity in this property. She has been required to make the mortgage repayments on the property for nearly three years now. The husband has lived rent and mortgage free by virtue of the two (omitted) property rental receipts being applied to repayment of the (omitted) Bank Line of Credit and MasterCard borrowings.

3. The parties have one adult child, Ms K, born (omitted) 1979. She is married with three children of her own and is financially independent of her parents.

Affidavits

1. The wife relied upon:-

   a)affidavits sworn by her on 20 June 2014, 20 October 2014, 1 April 2015 and 4 May 2015, and a Financial Statement sworn by her on 18 June 2014;

   b)an Affidavit sworn by Mr J sworn on 22 October 2014. Mr J is a certified practicing valuer who provided a valuation with respect to the former matrimonial home. That valuation was dated 15 October 2014. The property is registered in the joint names of the parties and contained in Certificate of Title Volume (omitted), Folio (omitted). The value provided was $410,000. That valuation was a jointly (by the parties) obtained bank valuation;

   c)an Affidavit sworn by Mr A on 3 June 2015. Mr A is a certified practising valuer who provided a further valuation with respect to the former matrimonial home on behalf of the wife only, and at a later point in time to that of Mr K. That valuation is dated 1 June 2015. The value provided was $475,000;

   d)an Affidavit sworn by Mr T, lawyer on 18 September 2015. That Affidavit went to the above valuers Mr J and Mr A having conferred but without resolution as to value. Mr J asserted the value of the former matrimonial home to be $440,000 and Mr A asserted the value to be $460,000. Ultimately at trial the parties agreed on a value of $450,000; and

   e)a Case Outline dated 3 June 2015.

2. The husband relied upon a Response filed on 22 October 2014; affidavits sworn by him on 22 October 2014, 30 March 2015 and 21 May 2015; a Financial Statement sworn 22 September 2014; and a Case Outline dated 3 June 2015.

Orders

1. Orders were made by consent on both 23 October 2014 and 1 April 2015. The Orders made on 23 October 2014 are relevantly as follows:-

   “1. That the Husband and the Wife forthwith place on the market for sale altogether out of Court the real property situate at Property S, WA more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property S real property”) on the following terms:

   (a) By a licenced Real Estate Agent as agreed between the parties or failing agreement the Estate Agent as appointed by the President of the Real Estate Institute of Western Australia.

   (b) At an agreed reserved price, or failing agreement at a price to be determined by the Estate Agent.

   2. Upon completion of the sale the proceeds of sale be applied as follows:

   (a) Firstly, to pay all costs, commissions and expenses of the sale including the Estate Agent’s costs, the conveyancing costs and any necessary disbursements.

   (b) Secondly, to pay any council and water rates and maintenance levies outstanding in respect to the real property.

   (c) Thirdly, to discharge the mortgage, the (omitted) Bank Line of Credit Account, the (omitted) Credit Card and any encumbrances effecting the real property.

   (d) Fourthly, to credit the (omitted) Superannuation Fund in the amount of $11,000.00.

   (e) Fifthly, in accordance with Order 5(a) hereof.

   (f) Sixthly, in accordance with Order 5(b) hereof.

   3. That the Husband and Wife place on the market for sale altogether out of Court the real property situate at Property W, WA more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property W real property”) on the following terms:

   (a) By a licenced Real Estate Agent as agreed between the parties or failing agreement the Estate Agent as appointed by the President of the Real Estate Institute of Western Australia.

   (b) At an agreed reserved price, or failing agreement at a price to be determined by the Estate Agent.

   4. Upon completion of the sale, the proceeds of the sale be applied as follows:

   (a) Firstly, to pay all costs, commissions and expenses of the sale including the Estate Agent’s costs, the conveyancing costs and any necessary disbursements.

   (b) Secondly, to pay any council and water rates and maintenance levies outstanding in respect to the real property.

   (c) Thirdly, to discharge the mortgage and any encumbrances effecting the real property.

   (d) Fourthly, in accordance with Order 5(a) hereof.

   (e) Fifthly, in accordance with Order 5(b) hereof.

   5. That contemporaneously with the completion of the sales of the two real properties in (omitted):

   (a) The Wife be paid, by way of partial property settlement, the sum of $205,000.00 (“the payment”).

   (b) The balance remaining of the monies referred to in Orders 2(f) and 4(e) hereof be held in an interest bearing Trust Account for and on behalf of the parties pending their written agreement or Order of the Court.

   6. That pending the completion of the sales of the real properties in (omitted):

   (a) That the parties shall hold their respective interests in those real properties upon Trust pursuant to these Orders.

   (b) Neither party shall encumber either property without the consent in writing of the other party.

   (c) That the parties shall jointly be responsible for the rates and like outgoings in respect of the two real properties.

   (d) That the parties shall equally share the incomes received from the real properties.

   7. That the parties do all acts and things and sign all documents necessary to, at their joint expense:

   (a) Value the (omitted) Self-Managed Superannuation Fund.

   (b) Instruct any valuer appointed pursuant to this Order to:

   (i) take into account, the current market value of the real estate in (country omitted);

   (ii) take into account the actual and likely incidence of taxation, both in the (country omitted) and under Australian Law.

   …

   10. That there be liberty to apply as to the terms and conditions of the sales of the (omitted) properties.”

2. The Orders made on 1 April 2015 are relevantly as follows:-

   “1. That the Husband have the conduct of the sale of the Property S, property and the Wife have the conduct of the sale of the Property W property.

   2. Otherwise, the Orders made on 23 October 2014 remain in full force and effect save that the parties agree to reserve prices in writing on or before 13 April 2015 in default of which Orders 1(b) and 3(b) of the 23 October 2014 Orders take immediate effect.

   3. The Husband and Wife forthwith do all things to reinstate the Wife as a signatory to the (omitted) Bank Line of Credit and to allow her access to the Statements of the accounts both in paper form and on-line access.

   4. Until further Order, both parties be restrained from drawing down on or otherwise dealing with the said Line of Credit and the (omitted) bank credit card save that:

   (a) All rental from the (omitted) properties continue to be paid into the Line of Credit.

   (b) All proper outgoings and expenses on the (omitted) properties be paid from the Line of Credit as and when they fall due.

   (c) Interest and any required minimum monthly payments on the (omitted) Credit Card be paid from the Line of Credit.

   5.Until further Order, both parties be restrained from drawing down on or in any other way, dealing with the 2 (country omitted) Bank accounts or any other accounts associated with the parties self-managed (omitted) Superannuation Fund save that:

   (a) All rental received from the 3 (country omitted) properties continue to be paid into the accounts.

   (b) All proper outgoings and expenses of the 3 (country omitted) properties be met from the said accounts as directed by the managing agent (including any management expenses).

   6. Forthwith, the Husband do all things to return the monies he withdrew from the (omitted) Superannuation Fund Account Number (omitted) with the (omitted) Bank sufficient to meet the outstanding (omitted) Accounting Invoice of $1,496.00.

   …”

3. Despite the Orders made on 23 October 2014 there has been no sale of either of the (omitted) properties.

Contribution

1. At the time of the parties’ marriage the wife was a (occupation omitted) and the husband employed in (employment omitted). Neither had assets of any significance.

2. After the parties married they purchased a home at (omitted) in Melbourne.

3. In 1978 the parties purchased the (business omitted) at (omitted) with the wife’s parents and operated that business.

4. In 1981 the parties purchased the (business omitted) at (omitted). While they were in the (business omitted), the parties purchased a farm at (omitted). Later the parties purchased a farm at (omitted).

1. In 1987 the parties sold the (business omitted) and moved to the farm at (omitted). The wife recommenced (occupation omitted) while the husband worked on the farm. The wife also did work on the farm.

2. In 1996 the parties leased the farm and headed off on a trip around Australia. They settled for some time in (omitted). The wife (occupation omitted) and ran the (business omitted) at the (omitted). The husband worked for a (omitted) company, (employer omitted), and also (employment omitted). While the parties were living in (omitted) they purchased the two (omitted) properties.

3. The parties then moved to (country omitted). The husband got a job (occupation omitted). The wife got work (occupation omitted). The parties lived in (country omitted) for about 12 months before the wife got sick with pneumonia during the SARS epidemic outbreak and so they returned to live in Australia.

4. In 1998, once the parties returned to Australia, they then rented a house in (omitted) and the wife returned to (occupation omitted) with the (employer omitted). The parties commenced a (omitted) business in (omitted). The husband worked in the (business omitted) full time and the wife worked in it on the weekends and during (omitted). The husband also worked part-time (employment omitted).

5. As described above, the parties had various types of employment and worked hard. They contributed all of their money and efforts towards their family’s welfare and the family’s acquisition of assets.

6. In about 2006 the parties purchased land at Property O in (omitted) near (omitted). The wife’s brother gave the wife a gift of about $70,000 that was used to start the construction of the former matrimonial home. While the home was being built, the parties continued to rent in (omitted). The wife continued working for the (employer omitted) in Melbourne. The husband later commenced to work as a fly in, fly out (occupation omitted) in (employer omitted) in Western Australia. The parties built the former matrimonial home as owner builders, doing work in their spare time. The parties’ son-in-law co-ordinated the works and sub-contractors for the parties during the week. Once the home was completed, the parties moved to live in it. The wife obtained employment with the (employer omitted) working four days per week. The husband used the former matrimonial home as a base for his fly in, fly out work to and from Western Australia.

7. The parties established their self-managed superannuation fund, (omitted) Superannuation Fund in July 2011. The assets of that Fund are three rental properties in the (country omitted) and two investment accounts in the (country omitted).

8. Both parties have engaged in post-separation acquisitions of property. The husband submitted that the wife’s post-separation acquisition of the real property at Property H should be excluded from the matrimonial pool and the husband’s acquisition of the real property at (country omitted) Property, (country omitted) should be excluded from the matrimonial pool.

Asset pool

1. The asset and liabilities of the parties at trial were as follows:-

a)    Property O in the State of Victoria  

$450,000

b)    Property S in the State of Western Australia

$540,000 or some lesser value but having the same value as c)

c)    Property W in the State of Western Australia

$540,000 or some lesser value but having the same value as b)

d)    (omitted) Bank Line of credit secured on  b & c

(DR 349,968.84)

e)    (omitted) credit card secured on b & c

(DR $24,726)

f)    Wife’s car and minor legals paid   and husband’s legals paid from parties fund and all prior to trial

Balance each other out as agreed

g)    Husband’s cash investment  (But noting the husband’s evidence that such sum no longer exists and thus not included in totalling the asset pool at bottom.)   

$30,000 (from item 38 of husband’s financial statement)

h)    Property H in the State of Victoria being the Wife’s home

Less (omitted) Bank mortgage (295,000) brother (100,000)

  Net equity

$410,000

(395,000)

                     $15,000

i)    Husband's (employer omitted) Superannuation 

$16,500

j)    Wife's (employer omitted) Superannuation   

$62,000

k)    (omitted) self-managed superannuation fund

$619,681

Total

$1,868,486.16

1. The assets of the (omitted) self-managed superannuation fund at trial with an exchange rate as at 21 September 2015 of .7209 were as follows:-

   a)(country omitted) Property, (country omitted)   = AUD$177,555

   b)(country omitted) Property, (country omitted)   = AUD$177,555

   c)(country omitted) Property, (country omitted)   = AUD$170,620

   d)(country omitted) Bank Account = AUD$9,564

   e)(country omitted) Bank savings Account = AUD$84,387

   Total  AUD$619,681

(country omitted) Property, (country omitted)

1. It is common ground between the parties that as described in the preceding paragraph, their self-managed superannuation fund owns three real properties in the (country omitted). The property described in paragraph 23(c) above (“the third property”) was purchased post-separation at the instigation of the husband but with the cooperation and involvement of the wife. The husband seeks to exclude this asset from the pool divisible between the parties.

2. The monies for the purchase of the third property derived as follows:-

30/07/2012	$48,948.89	$48,948.89 was withdrawn from the parties (omitted) Bank Line of Credit as secured over their assets as described in these reasons and paid into (country omitted) “safe harbour” account
25/9/2012	$5,000	$5,000 was paid from (country omitted) Bank account into the “safe harbour” account
15/10/2012	$54,000	$54,000 was paid from the husband’s (omitted) Superannuation Fund into the “safe harbour” account. Some small part of these monies were accumulated by the husband’s salary sacrificing and the employer’s contribution to superannuation in the six months prior to the separation of the parties but otherwise were largely the husband’s salary sacrifice superannuation payments out of post separation income.
3/1/2013	($31,446.17)	$11,446.17 and $20,000 paid back into the (omitted) Bank Line of Credit – making the contribution from the (omitted) Bank Line of Credit net $17,502.72

1. The (omitted) Superannuation Fund would not have been able to purchase the third property without the wife agreeing to some part of the purchase monies being made available from the parties (omitted) Bank Line of Credit account. The $5,000 deposit for the third property came from the (country omitted) Bank account which were effectively funds of the parties. The wife did, and continues to do, all the necessary liaison regarding managing the (omitted) properties for the (omitted) Superannuation Fund including in particular in respect of the third property arranging all the transactions for the purchase, liaising with the agent and (omitted) conveyancer for the purchase, liaising with the (omitted) agent and accountant regarding the ongoing management of the property including the rental and receipt of rental payments, and payment of (omitted) taxes. The wife has also conducted all liaisons with the parties accountant in Australia regarding the management of the (omitted) Superannuation Fund. The purchase of the third property, and its ongoing management, could not have happened without the wife. The husband, having the use of the former matrimonial home and having to pay only one half of its outgoings and no mortgage, with otherwise employer provided accommodation was able to salary sacrifice a part of his post separation income into the parties’ (omitted) Superannuation Fund.

2. Between October 2012 and April 2015, the wife paid $46,200 in rental payments and mortgage repayments for her accommodation, together with 50% of the outgoings on the former matrimonial home at Property O. By contrast, the husband expended no such sum on his accommodation, save the one half of the outgoings.

Property S

1. The husband sought to delay the sale of the two (omitted) properties at the commencement of these proceedings and then sought that they be sold in different financial years, one following the other, to lessen the impact of capital gains tax. The wife sought an immediate sale of both properties so as to pay out the parties debt and provide them with some necessary capital. The husband argued the properties, which were then tenanted to a long term government tenant, should be vacant for sale. The wife argued that they should remain tenanted to make them more attractive to sell, and importantly, to provide the parties with ongoing income to apply to their borrowings and the payment of the properties operating and maintenance expenses. The husband delayed at every stage the bringing of these properties to the market. Whilst the wife managed to enter into a new tenancy agreement in respect of the Property W property, the husband set about alienating the same tenant, and indeed by his actions and his actions solely, without reference to the wife, lost the tenant of the Property S property. The income from the same government tenant in both (omitted) properties was important income for the parties. It was approximately $6,293.82 a month. The expenses in respect of the properties and the (omitted) Bank Line of Credit and MasterCard repayments were paid with these monies. The husband’s actions decreased the monthly income of the parties by approximately half the rental receipts. At trial the husband had made no attempt to re-let the Property S property. By that time, because of the difficulties for the wife in getting the husband’s co-operation, the parties had agreed by earlier order, to each have the conduct, separately, of the sale of the two properties with the wife having the conduct of the Property W property. The parties agreed the two properties have a similar value, that value being approximately $540,000. However neither has been able to sell the (omitted) properties at that price. The husband, in the weeks before trial, obtained a conditional offer in writing on the Property S property of $500,000. He did not advise the wife of the offer. He did not discuss same with her. On 19 August 2015 he rejected the offer. The wife, when it became known to her, indicated that she would have accepted the offer and paid out the parties (omitted) Bank Line of Credit and MasterCard debt. She had waited a long time to be able to do so, and during that time, was content to leave the husband in the former matrimonial home albeit the sale of that home could likewise pay out the parties’ debt. The husband’s behaviour in rejecting the offer out of hand, and in leaving the premises untenanted, has disadvantaged the wife financially and is reprehensible behaviour. It is she who currently pays a mortgage on her home and not the husband. She is entitled at this age in her life and with uncertain employment in the future to realise the parties’ assets to render the parties debt free. She is also entitled, as legislatively prescribed, to sever her financial relationship with the husband.

Other matters

1. Post separation the wife obtained an Intervention Order against the husband. This was a consequence of the husband damaging the gate of her home by deliberately driving into it. He acknowledged that he caused damage to her property and paid the compensation ordered in the sum of $1,990 out of the parties (omitted) Bank Line of Credit. He had significant income but did not apply his income to the payment. When the Intervention Order expired the husband sent a nasty and harassing note to the wife, to intimidate her, suggesting he would buy the property next door to her and knock it down before building a much larger two story house. Such behaviour was yet another indication of his intent to make life difficult for the wife and to thwart her attempts to separate from him both physically and financially. Even at trial he attempted to intimidate her by turning to her in closing submissions and saying “Fuck you, cunt of a thing”.

2. Since separation the wife has been absolutely honest and reliable in her financial dealings with the husband and management of their financial affairs. The husband by his conduct has not been so with the wife. He has unilaterally removed funds from the (omitted) Bank Line of Credit. Between the two trial dates he took a further sum of $6,800. The husband had a savings sum of $30,000 which has been spent by him but with no evidence given to the Court as to how the husband expended such funds, or how and when they were accumulated.

3. The evidence before the Court is that the value of the three real properties in the (country omitted) has increased since the parties purchased such properties. The husband’s evidence is that not only has this occurred but that he would have no difficulty selling such properties. Yet to date he has not sought to do so. He wishes to remain in occupation of the former matrimonial home with the wife paying a mortgage in respect of her accommodation and further years to pass. This is not just and equitable between the parties.

4. The husband’s proposal at the end of the trial was that he would retain ownership of the former matrimonial home and that he would retain two thirds of the value of the parties Superannuation Fund. Over further time the (omitted) properties could be sold, but only at a price agreed by him and the wife could obtain any monies due to her from their sale. The parties’ debt would be paid out of the (omitted) properties sale proceeds with that debt to be paid in the meantime with the rental receipts of one property and how otherwise in a manner not considered by the husband. The husband then suggested a sale of the three (country omitted) properties but reiterated that he wished to sell the (omitted) properties first. He argued that he would have nowhere to live if the former matrimonial home was sold. He in fact could live in the untenanted (omitted) property, or in rental accommodation funded by his immediate access to superannuation monies. In short he put nothing concrete before the Court that would lead to a severance of the parties financial relationship and an easing of the financial burden carried by the wife in the need to meet her approximately $400 weekly mortgage repayment. This is before she attempts to repay her brother’s loan.

5. The Court determines in the exercise of its discretion to divide the parties assets equally as submitted by the wife’s Counsel. The wife’s brother’s contribution of $70,000 and the husband’s and wife’s post separation income as applied to the parties assets in the wife’s, in the form of a $15,000 equity in her home, and in the husband’s in his far greater salary sacrificing into the superannuation fund for the purchase of the third property, are taken into account and for the reasons given above, and in the context of such a long marriage, do not disturb a position of equality. The formulation of the Orders is an application of the need to do justice and equity between the parties. That requires the wife to have control of the sale of the former matrimonial home and an order for such sale. In no other way will the wife be able to retire the parties debt quickly and maximise their assets values. The wife will receive no co-operation from the husband. Additionally the husband should be required to pay to the wife an amount of $8,800 being monies taken unilaterally by him from the parties funds and payment of the damaged gate as referred to in these reasons, and rounded up to $2,000.

6. In arriving at the payment sum the Court determines that 50 percent of the (omitted) Superannuation Fund is $309,840.50. One half of the combined (employer omitted) Superannuation Fund is $39,250. The husband needs to account thus in the sum of $309,840.50 to the wife and the wife in the sum of $22,750 to the husband. Additionally the wife needs to account to the husband in the sum of $7,500 in respect of her equity in her home in Property H (total of $30,250). This leaves the husband needing to pay to the wife the sum of $279,590.50 together with the further $8,800 sum as described. The payment is therefore $288,390.50.

7. The wife in these proceedings adopted a fair and reasonable approach to the resolution of the issues. The husband is fortunate that she did so.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 29 January 2016