PANAGAKOS & PANAGAKOS

[2015] FamCA 63

FAMILY COURT OF AUSTRALIA

PANAGAKOS & PANAGAKOS [2015] FamCA 63

FAMILY LAW – PROPERTY – Final Orders – marriage of 13 years duration – where the husband made significant contributions by renovating and supervising construction of various properties – where wife made a significant initial contribution – where the husband’s mother gifted significant sums of money to the husband – contributions made by husband’s mother – where there is an adjustment  in favour of the wife as primary caregiver of the children – where the husband has continued to occupy the parties’ property on a rent free basis – where orders are made for the husband to retain the property – orders made for a distribution of property 53/47 in favour of the husband.

Family Law Act 1975 (Cth) s 75(2)

Stanford v Stanford [2012] HCA 52

APPLICANT: Ms Panagakos

RESPONDENT: Mr Panagakos

FILE NUMBER: SYC 6425 of 2012

DATE DELIVERED: 12 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 16 & 17 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: Hancock Alldis & Roskov Lawyers & Notaries Public

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Meyer Partners Family Lawyers

Orders

1. Within two calendar months of the date of these orders, the husband will pay to the wife the sum of $748,000.

2. Simultaneously with such payment to the wife by the husband, both parties will do all things and execute all documents necessary to effect the transfer to the husband of the whole of the wife’s interest in the property situate at and known as A Street, Suburb B in the State of New South Wales.

3. Each of the parties is otherwise declared to be solely entitled to all items of property and superannuation which are in his and her respective possession and control as at the date of these orders.

4. (4.1)     Within 21 days of the date of these orders the husband will transfer to the wife or her nominee his shareholding in and resign as a director of the company known as C Pty Ltd.

   (4.2)The wife will indemnify the husband against all liabilities of whatever nature arising from his positions as a shareholder and/or director of the company of C Pty Ltd.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Panagakos & Panagakos 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 6425 of 2012

Ms Panagakos

Applicant

And

Mr Panagakos

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. Mr Panagakos (“the husband”) and Ms Panagakos (“the wife”) are in dispute as to property settlement, following the breakdown of their marriage of 13 years.  They resolved parenting issues by way of final consent orders made on 29 September 2013.

2. The parties have two children: D born in 2001 (13) and E born in 2003 (11).  The Orders of 29 September 2013 provided that the children live with the husband for five nights per fortnight and half of all school holidays and, otherwise, live with the wife. 

Background

1. The husband was born in 1970 and is presently 44 years of age.  The wife was born in 1971 and is presently aged 43 years.  They began a relationship in 1990 and married in 1995.  The parties separated in May 2008.

2. In mid-1994 the parties became engaged and purchased a property at F Street, Suburb G.   The purchase price was $235,000, of which $160,000 consisted of a mortgage advance from the St George Bank.  It was common ground that the wife’s parents provided $15,000 and the husband’s mother $5,000 to the purchase monies.  There was a dispute as to whether the wife contributed $70,000 or $55,000 to the purchase money from pre-marriage savings.  There was also a dispute as to whether the husband contributed pre-marriage savings of $5,000.

3. The parties carried out repairs and improvements to the Suburb G property.  The husband performed a considerable amount of the physical work himself, with the assistance of the wife and friends.  Repairs and renovations to the Suburb G property continued over a number of years.

4. Prior to the marriage, the parties renovated the workshop premises owned by the wife’s parents.  The wife provided a sum of $15,000 or $30,000 to meet the cost of materials and equipment.  The parties together carried out the physical renovation work.  The husband established a business at these premises, where he worked for six days per week until mid-1999.

5. After the marriage, the wife worked and the husband conducted the business.  The husband conceded that, between 1997 and 1999, his income and that of the wife were approximately $50,000 and $145,000 per annum respectively.  He acknowledged that the wife made a greater financial contribution to the funds applied to the pay out of the mortgage on the Suburb G property.  The parties discharged this liability in 1998.

6. Also in 1998, the parties purchased an investment property at H Street, I Town for $150,000.  The purchase money came from the parties’ joint savings.

7. Between 1999 and 2001, the parties lived in Country J.  The wife worked in the for approximately 18 months and earned an income equivalent to approximately A$28,000 per month.  The husband worked for several months and studied to enable him to take on employment in the service area.  The wife conceded that the husband attended to housework and cooking whilst she worked during the parties’ time in the Country J.

8. In May 2000, the parties purchased a property at K Street, Suburb L for $1,293,000.  The purchase money came from a mortgage advance of approximately $934,000 and a loan of $299,705 from the husband’s mother.  The husband’s sister, Ms M, bid at the auction and arranged tenants for this property on behalf of the parties.

9. In 2001 the parties sold the I Town property for $415,000.  They repaid to the husband’s mother the funds which she loaned for the purchase of the Suburb L property.

10. Upon their return from the Country J, the parties moved into the Suburb G property.  In preparation for the birth of their daughter, D, they renovated the bathroom.  The husband carried out substantial physical work on these renovations.

11. The husband’s mother gave to him sums of $10,000 in each of 2001 and 2002.  She also gifted to the husband five sums which totalled $17,000 between 15 April 2003 and 8 October 2003.  Mrs Panagakos Senior thus provided to the husband a total amount of $37,000 between 2001 and 2003.

12. Some months after the birth of the parties’ son, E, the wife returned to the paid workforce.  She entered into a contract with Woolworths and earned $145,000 per annum for a four day working week.

13. In 2003 the parties decided to sell their home at Suburb G and build a new house.  They purchased a property at A Street, Suburb B for $905,000.  Their intention was to demolish the existing house and construct a new home.

14. Prior to its sale, the parties carried out renovations to the Suburb G property.  The husband undertook some of the physical work and the parties engaged tradesmen, including a kitchen installer named Mr N.  The Suburb G property was sold for $721,000 in December 2003.

15. The parties entered into a lease with the purchasers of the Suburb G property and continued to live there until September 2007.  The family then moved into the home of the husband’s mother at Suburb G, on a rent-free basis.  The wife and the parties’ children moved into the home of her mother at Suburb O upon the parties’ separation in May 2008.  For a considerable period after the parties’ separation, the children spent equal time with each of their parents.

16. In 2005 and 2006, the husband’s mother sold her home units and provided to the parties a total sum of $276,877.  These funds were applied to the construction of the Suburb B property.  The husband’s mother also provided funds from the sale of these properties to his brother and sister.  There was a dispute between the parties as to whether the husband’s mother provided this sum of $276,877 by way of loan or gift.

17. The husband and his mother both maintained that she asked the wife to sign a document dated 2 September 2005 which read:

    “[Ms Panagakos] I want you to sign this paper.

    If anything happens with you and [Mr Panagakos’] marriage that you pay back to me half of my money from the flats I sold in [Suburb P].

    Sign here.”

    (Annexure D to the affidavit of [Ms Panagakos Snr] sworn on 30 October 2014)

18. The wife maintained that she first saw this document when she read the affidavit of the husband’s mother.  She conceded that Ms Panagakos Senior asked her to sign a document but denied that she said “Mum, I promise we will pay you back if we separate”.

19. Between 2003 and 2007, the parties leased the Suburb B property and applied the rental income to mortgage repayments.  During this period they prepared the site for the demolition and reconstruction project.  The husband attended meetings with an architect and dealt with Suburb Q Council in relation to plans for the new residence.

20. In November 2006 the husband obtained an owner/builder’s licence.  His cousin Mr R, a licensed builder, agreed to construct the upper levels of the new house.  The husband, as owner/builder, arranged for the excavation and construction of the basement and carried out some of this physical work himself.

21. Each of the parties ultimately conceded that they were both closely involved in the design of the Suburb B property.  The husband attended the building site at night and on weekends.

22. Construction of the Suburb B property was approximately 50 per cent complete when the parties separated in May 2008.  During that year the husband continued with the work, which was approximately 95 per cent complete by the end of 2008.

23. In 2009 the parties decided to sell the Suburb L property.  They carried out renovations prior to the sale, utilising money provided by the wife’s mother.  There was a dispute as to the amount and whether this advance was a loan or a gift.  The husband maintained that the wife’s mother made a gift of $14,000.  The wife and her mother contended she advanced $30,000 and that there was an agreement that she would be repaid on the sale of the Suburb L property.

24. In late 2009, the Suburb L property failed to sell at auction.  The parties then leased the property until its sale in August 2011.  They realised a net profit of $691,226, which was deposited into a controlled monies account.  In October 2012 each of the parties received $60,000 from this account, which was used to pay capital gains tax arising from the sale of this property.

25. Between July 2009 and mid-2010, the wife paid a total of $49,428 on account of fees due to tradesmen, loan repayments and credit card debts.  Some of these costs were charged to a credit card in the sole name of the wife.

26. In mid-2010, the wife commenced a relationship with Mr S.  They began to live together in June 2011 in rented premises at Suburb T.

27. On 4 April 2013, the husband received an amount of $60,132 from the controlled monies account.  He paid $28,000 to his solicitor and used the balance of these funds for construction work at the Suburb B property.

28. Between June and August 2013, the husband completed all work necessary to obtain an occupation certificate in relation to the Suburb B property.  This work cost a total of $11,242, which funds came from the controlled monies account.  The occupation certificate was issued on 7 August 2013.

29. On 10 August 2013 the husband moved into the Suburb B property, without the consent of the wife.  The husband has continued to occupy the Suburb B property on a rent free basis.

Approach to these proceedings

1. In Stanford v Stanford [2012] HCA 52 the majority of the High Court of Australia held as follows at [35]:

   It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.  Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section.  The requirements of the two sub-sections are not to be conflated.  In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows at [42]:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.  That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the court make a property settlement order.  What order, if any, should then be made is determined by applying s 79(4).

3. Each of the parties seeks orders which would cause an alteration to their interests in matrimonial property.  Accordingly, I construe their competing applications as mutual concessions that it is just and equitable that there be orders for alteration of property interests.

4. Additionally, the parties have lived separately and apart for almost six years.  They both have repartnered and no longer comingle their finances.  Nothing in the evidence gave any indication that they will ever again make common use of their property.  For these reasons, I am comfortably satisfied that it is just and equitable that there be orders for alteration of property interests.

The Evidence and Witnesses

1. The applicant wife relied on the following affidavits:

   1.        Ms Panagakos (the wife) sworn on 29 October 2014;

   2.        Mr S (the wife’s partner) sworn on 27 October 2014;

   3.Ms U (the wife’s mother) sworn on 23 October 2014;

   4.Mr V (real estate valuer) sworn on 12 December 2013; 

   5.        Financial statement of Ms Panagakos sworn on 29 October 2014.

2. The wife’s mother gave her evidence with the assistance of a Greek interpreter.  Mr S and Mr V were not required for cross-examination.  Mr V’s report addressed the issues of the value of the Suburb B property and the rental which it could have fetched during the husband’s period of occupation.  I indicated that I would not carry out a mathematical exercise and ascribe a dollar value to the husband’s occupation of the property.  It was agreed that the property has a value of $2,100,000, thus it was unnecessary for Mr V to give oral evidence. 

3. The respondent husband relied on the following affidavits:

   a)Mr Panagakos (the husband) sworn on 31 October 2014;

   b)Ms Panagakos Snr (the husband’s mother) sworn on 30 October 2014;

   c)Ms M (the husband’s sister) sworn on 30 October 2014;

   d)Financial Statement of Mr Panagakos sworn on 31 October 2014.

   The husband’s mother gave her evidence with the assistance of a Greek interpreter.  Ms M was not required for cross-examination.

The Assets, Superannuation, Liabilities & Financial Resources

1. Counsel for the parties submitted a Joint Balance Sheet in the following terms:

ASSETS
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
1	J	A Street, Suburb B				2,100,000	2,100,000
2	J	Monies held in trust				550,900	550,900
3	W	Wife at bank St George 112-879				1,863	1,863
4	H	Husband at bank				860	860
5	H	Husband’s motor vehicle				11,290	11,290
6	H	Husband’s other assets as agreed				31,700	31,700
7	W	Wife’s other assets as agreed				11,350	11,350
8	J	A Street contents as agreed				4,250	4,250
9	H	Partial distribution of cash to Husband				60,000
Total		2,772,213	2,712,213

ADDBACKS
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
10
11
12
Total
LIABILITIES
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
13	W	ANZ Visa				15,511	NK
14	W	CBA Mastercard				7,537	NK
15	J	Monies owing to Mr N				Nil	26,000
16	J	Monies owing to Mr R				Nil	3,000
17	J	Monies owing to Ms Panagakos Snr				Nil	276,877
18	W	Monies owing to Ms U				30,000	NK
19	W	St George Bank Credit card				3,220
Total		$    56,268	$     305,877

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner’s value	Husband/de facto partner’s value
20	W	Matrix			84,680	84,680
21	H	Colonial			A		75,053	75,053
Total		$  159,733	$     159,733

FINANCIAL RESOURCES
Ownership		Description				Wife/de facto partner’s value	Husband/de facto partner’s value
22
23
24
25
Total		$                0	$                 0

Notes

Item No
9.	The Husband received a partial distribution of $60,000 from the Controlled Monies Account of the parties held by W Accountants for both parties.
19.	The Applicant Wife, on or about 2 December 2014 utilised the St George credit card to pay the Family Court hearing fee of $3,220. Prior to this transaction the said credit card had a nil balance.

1. During their final submissions counsel for each of the parties suggested that the superannuation benefits might usefully be excluded from the balance sheet.  They agreed that this approach is appropriate, given that the funds have approximately equal value and will be unavailable to the parties for many years.  Accordingly, I will exclude the Matrix and Colonial Superannuation benefits from the balance sheet.

2. The only disputed asset was the sum of $60,000 which the husband received from the controlled monies account in April 2013.  The husband gave evidence that he injected $32,000 into the construction of the Suburb B property and paid the balance of $28,000 to his solicitor on account of legal fees.  It was submitted on behalf of the wife that there was no evidence to establish that the husband in fact applied $32,000 to the construction of the Suburb B property.  Nonetheless, I accept the husband’s evidence that he did so and accordingly the amount of $32,000 will be excluded from the list of assets. 

3. I also accept that the husband paid $28,000 to his solicitor from these funds.  Otherwise he has borrowed $33,500 from his mother to meet his legal fees.  The wife has paid approximately $27,000 from her post separation income on account of legal fees and has an outstanding debt of about $70,000 to her solicitor.

4. It is thus the case that the husband, but not the wife, has had access to joint funds to meet legal fees.  Accordingly, I will include the sum of $28,000 in the list of assets. 

1. Counsel for the parties agreed that the wife’s CBA Mastercard and St George Bank credit card should be ascribed a balance of ‘nil’.  I will thus exclude these liabilities from the balance sheet.

2. No mention was made by counsel for either of the parties, in final submissions, of the wife’s ANZ Visacard debt of $15,511.  A balance sheet submitted by counsel for the husband on the last day of the trial included the wife’s ANZ Visacard debt in the sum of $15,511 in a column headed ‘Husband’s Value’.  I thus conclude that the husband conceded that this debt should be included in the list of liabilities.

3. The wife disputed the existence of the alleged debts to tradesmen Mr R and Mr N and Ms Panagakos Senior.  The husband disputed both the existence and quantum of the alleged debt to the wife’s mother. 

4. The husband conceded that he had no documents to establish that the parties have debts to these two tradesmen.  He maintained, and the wife accepted, that tradesmen who worked on the Suburb B property did not enter into contracts and frequently were paid in cash.

5. The husband produced no affidavit from either “Mr R” or “Mr N”.  This course was always open to him, particularly in relation to “Mr N” who is his cousin.  In these circumstances, I am not prepared to find that the parties have liabilities of $3,000 and $26,000 to “Mr R” and “Mr N” respectively.

6. It was common ground that the husband’s mother, Ms Panagakos Snr, advanced to the parties a total sum of $276,877 in 2005 and 2006.  The husband’s evidence was that there was never any discussion about payment of interest on these funds. 

7. The evidence of the husband, his mother and sister was to the effect that Ms Panagakos Snr asked each of her children and their spouses to sign an acknowledgment that she would be reimbursed for these funds in the event of a marriage breakdown.  They all maintained that no such documents were executed by any of the siblings, after the wife’s refusal. 

8. In cross examination the husband’s mother said words to the effect:

   “I never thought of not making a demand on [Mr Panagakos] because I do not expect him to repay.  Yes, I only want money from [Ms Panagakos].  I want all of my money now and afterwards I will think about what to do.”

9. The wife’s evidence was to the effect that the husband’s mother asked her to “sign a waiver to the money if you and [Mr Panagakos] split in the future”.  As noted, the wife maintained that she saw this document for the first time when she read the affidavit of Ms Panagakos Snr. 

10. It seems to me that the evidence of the husband, his sister and Ms Panagakos Snr fell short of establishing that the parties have a joint debt to the husband’s mother in the sum of $276,877.  There is no written contract and no evidence which would warrant a finding that there was a concluded oral agreement.  The evidence established only a request by Ms Panagakos Snr, and a refusal by the wife, to enter into such an agreement.  Accordingly, I find that the parties have no joint liability of $276,877 to the husband’s mother.

11. Of course, this finding is not determinative of the relevance of the funds advanced by the husband’s mother.  Clearly, this money was a contribution on behalf of the husband and must be taken into account in that context. 

12. Both the wife and her mother gave evidence that Ms U provided a sum of $30,000 in 2009, to enable the parties to carry out renovations to the Suburb L property prior to its sale.  In cross examination the wife’s mother was adamant that she provided these funds as a loan and not a gift.  Ms U gave clear evidence that the husband was not present when she handed a sum of $30,000 in cash to the wife.  In her affidavit the wife deposed “I then approached my mother …” following a conversation between the parties concerning a loan from Ms U to fund these renovations. 

13. It seems to me to be significant that the wife’s mother advanced these funds after the parties’ separation in May 2008.  In my view, it is improbable that the wife’s mother would include her daughter’s estranged husband in a gift of either $14,000 or $30,000. 

14. It seems to me to be significant also that the wife’s then solicitor raised the issue of repayment of a sum of $30,000 to Ms U in correspondence prior to the settlement of the sale of the Suburb L property (Annexure F to the Affidavit of the wife).  I consider that this course of action supports the premise that the funds were advanced as a loan, rather than a gift. 

15. For these reasons, I find that the parties have a joint liability to the wife’s mother.  I am not satisfied that the husband observed the counting of this cash and reject the proposition that Ms U advanced only $14,000. 

16. There was no suggestion that either party holds a financial resource.  Accordingly, I find the assets, liabilities and financial resources of the parties to be as follows:

ASSETS: NON SUPERANNUATION
Ownership		Description						Wife/de facto partner’s value
1	J	A Street, Suburb B						2,100,000
2	J	Controlled Monies Account						550,900
3	W	St George Bank Account						1,863
4	H	Commonwealth Bank Account						860
5	H	Motor Vehicle						11,290
6	H	Remaining Assets of Husband as agreed						31,700
7	W	Remaining Assets of Wife agreed						11,350
8	J	Contents of Suburb B Property						4,250
9	H	Cash Distribution to Husband						28,000
Total		2,740,213

LIABILITIES
Ownership		Description				Value
1	W	ANZ Visacard				15,511
2	J	Monies owed to Ms U				30,000
Total		$45,511

The letters ‘J’, ‘H’ and ‘W’ signify my findings as to ownership of assets or liability for debts by the parties jointly, the husband or the wife. 

The Contributions of the Parties

1. There is no doubt that the wife made a greater initial direct financial contribution than did the husband.  She introduced savings of either $100,000 or $70,000 into the relationship.  These funds were applied to the purchase of the Suburb G property and the fit out of the husband’s mechanic business.  The husband’s savings amounted to approximately $5,000 at the commencement of the parties’ relationship. 

2. For considerable periods during the parties’ cohabitation, the wife’s income exceeded that of the husband.  He conceded that she contributed a greater proportion of the funds applied to the discharge of the mortgage on the title to the Suburb G property.  The parties were able to discharge a debt of approximately $160,000 in four years.  In 1998 they purchased the I Town property, without borrowings, for $150,000. 

3. The parties received the benefit of cash advances from each of their parents.  The wife’s parents provided a sum of $15,000 and the husband’s mother $5,000 when the parties purchased the Suburb G property in 1994. 

4. Between 2001 and 2003 the husband’s mother advanced sums which totalled $37,000 to the parties.  In 2005 and 2006 Ms Panagakos Snr provided an amount of $276,877, which funds were injected into the construction of the Suburb B property. 

5. In 2000 the husband’s parents provided an interest free loan of $299,705, to assist the parties with the purchase of the Suburb L property.  They had the benefit of these funds for approximately six months, until this loan was discharged from the proceeds of sale of the I Town property.

6. In 2009 the wife’s mother advanced to the parties a sum of $30,000, which they applied to renovations of the Suburb L property prior to its sale.  There was no suggestion that this loan carried interest and the parties have had the benefit of these funds for some five years.

7. The husband undertook considerable physical work on the Suburb G and Suburb B properties.  He also supervised the construction of the Suburb B property in the capacity of owner/builder.

8. It seems that the wife assumed the majority of responsibility for care of the children during the marriage.  She took several months out of the paid workforce at the time of their births.  At the same time, the husband engaged in paid employment and devoted substantial time to renovation and construction of the Suburb G and Suburb B properties. 

9. Between the date of separation in 2008 and 2012 the parties cared for the children on an equal time basis.  Thereafter, the children have spent five nights per fortnight with the husband and otherwise lived with the wife.  I accept the husband’s evidence that the parties each assumed responsibility for the financial support of the children during the equal time regime which existed between 2008 and 2012. 

10. During their cohabitation, both parties were prodigious workers and savers.  I am satisfied that they supported each other in their joint endeavours to accrue assets and amass wealth.  It was regrettable that they each sought to minimise the efforts of the other during the trial, although the wife did so to a greater extent than did the husband.

11. It seems to me that considerable weight should be attached to the contribution made on behalf of the husband by his mother.  As noted, she provided $37,000 in 2001-2003 and $276,877 in 2005 and 2006.

12. Were it not for this injection into the parties’ finances I would be inclined to find that they made equal contributions.  The wife introduced either $70,000 or $100,000 into the relationship but the husband contributed substantial physical labour to the renovation and construction of the Suburb G and Suburb B properties.  Both parties engaged in paid employment and made their earnings available for the benefit of the family.  Both parties cared for their children, with the assistance of the two grandmothers.

13. Having regard to the contributions of $276,877 and $37,000 made on behalf of the husband by his mother, I am satisfied that there should be a contribution finding in his favour.  I find that the contributions of the parties should be assessed at 55 per cent to the husband and 45 per cent to the wife.

Section 75(2) Factors

1. I have considered carefully each factor set out in s 75(2) of the Act. I refer only to those factors which seem to me to have relevance to these proceedings.

2. The husband and the wife are aged 44 and 43 years respectively and are both in good health.  The wife’s gross weekly salary is $2,269, in comparison with the husband’s income of $1,253. 

3. The children spend five nights per fortnight in the care of the husband and otherwise live with the wife.  The husband pays child support in a total amount of $390 per month.  

4. The wife cohabits with Mr S, who is employed.  He earns a gross annual salary of approximately $107,863.  The wife and Mr S contribute equally to their rent and the cost of utilities. 

5. The husband cohabits with Ms X, whose gross weekly income is $1,442.  There was no evidence as to the financial arrangements of their cohabitation. 

6. The husband has occupied the Suburb B property since August 2013.  This property is unencumbered but he pays the council and water rates.  The wife has paid rent for her accommodation since June 2011. 

7. Each of the parties has the capacity to engage in paid employment.  They both cohabit with a partner who earns an income.  Nothing in the evidence suggested any potential risk to their ongoing capacity to generate income.

8. The children are cared for by the husband and the wife in a five/nine days per fortnight regime. I consider that the husband’s child support payment of only $390 per month would leave the wife with a greater responsibly for their financial support. For that reason, I find that there should be a small adjustment in the wife’s favour on account of s 75(2) factors. I find that the wife should receive an additional 2 per cent of the net pool of property.

Conclusion as to Alteration of Property Interests

1. I thus find that the net pool of property should be divided as to 53 per cent to the husband and 47 per cent to the wife.  An issue arose as to which of the parties, if either, should retain the Suburb B property.  Each of the parties sought to retain this property and make a cash payment to the other.

2. It is somewhat tempting to order a sale of the property in these circumstances.  On balance, however, I consider that the husband should be afforded that option.  He injected considerable physical effort into the design and construction of the property, which has been his home since August 2013.  Members of his family live in the neighbourhood of the property.  The husband has sought orders which would enable him to retain the Suburb B property since he filed his Response to Initiating Application on 14 February 2013.

3. On 7 February 2013 the ANZ Bank approved a loan of $600,000 to the husband (Exhibit 44 to the husband’s affidavit).  That offer lapsed on 31 May 2013 but I have no reason to doubt that a similar facility would be extended to the husband, if he makes a fresh application.  Additionally, there is a history of financial assistance provided to the husband by his mother.  In my view, he should be afforded an opportunity to acquire the wife’s interest in this property.

4. The net pool of property has a value of $2,694,702, of which 53 per cent and 47 per cent equal $1,428,193 and $1,266,510 respectively.  A document entitled ‘Financial Result Of Orders Sought By The Husband’ contemplated that the wife receive the whole of the funds in the controlled monies account, in the event that he retains the Suburb B property.  Such an arrangement seems appropriate to me and I will make orders accordingly.

5. The husband will take or retain the following assets:

   a)A Street, Suburb B  $2,100,000

   b)Motor Vehicle  $11,290

   c)Remaining Assets of Husband as Agreed  $31,700

   d)Contents of Suburb B Property  $4,250

   e)Cash Distribution to Husband  $28,000

   f)Commonwealth Bank Account  $860

   $2,176,100

   The husband will assume no liabilities.

6. The sum of $2,176,100 exceeds the husband’s entitlement of $1,428,193 by $747,907.  I will round off that amount and order that the husband pay a sum of $748,000 to the wife within two calendar months. 

7. The wife will take or retain the following assets:

   a)Controlled Monies Account  $550,900

   b)St George Bank Account  $1,863

   c)Remaining Assets of Wife as Agreed  $11,350

   $564,113

   The wife will assume the following liabilities:

   a)ANZ Visacard  $15,511

   b)Monies Owed to Ms U  $30,000

   $45,511

   She will thus receive net assets to the value of $518,602, which falls short of her entitlement of $1,266,510 by $747,908.  The husband will pay to the wife a rounded-off sum of $748,000.

8. I am satisfied, and I find, that this outcome achieves justice and equity between the parties.  The husband receives their major asset and the wife will have available liquid funds of $1,298,900, before she attends to her debts. 

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 February 2015.

Associate:

Date:  12 February 2015