PERICLES & HOPMAN
[2021] FamCA 235
FAMILY COURT OF AUSTRALIA
| PERICLES & HOPMAN | [2021] FamCA 235 |
| FAMILY LAW – DE FACTO PROPERTY – where relationship is found to be of fourteen years duration – where husband made the overwhelming financial contributions – where wife’s contributions were non-financial and as a homemaker – where parties did not have children. FAMILY LAW – DE FACTO PROPERTY – where husband claimed payments made to wife around the time of and after separation as monies received by her on account of entitlement to an alteration of property interests – where payments totalling approximately $300,000 had been fully expended by wife at the time of the trial – where payments of $300,000 were not treated as add backs. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Dickons (2002) FamCA 154 GVC v HPC (1998) FamCA 143 H&T [2018] EWHC 3692 (Fam) Kowaliw (1981) FLC 91-092 Pericles & Hopman [2020] FamCA 465 Re L and B (Children) [2013] UKSC 8 Summit & Summit & Ors (Re-opening) [2009] FamCA 365 Townsend & Townsend (1995) FLC 92-567 |
| APPLICANT: | Ms Pericles |
| RESPONDENT: | Mr Hopman |
| FILE NUMBER: | MLC | 9624 | of | 2016 |
| DATE DELIVERED: | 23 April 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 13, 15, 18, March 2019 and 21-22, 25 March 2019 and 8-9 August 2019 and 24 February 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr Strum QC (13, 15 and 18 March 2019) Mr Nehmy (13, 15 and 18 March 2019) |
| SOLICITOR FOR THE RESPONDENT: | Blackwood Family Lawyers |
Orders
The husband pay or cause to be paid to the wife $2,340,655.10 as follows:
(a) The parties forthwith authorise the Applicant's Lawyers, Lander & Rogers Lawyers, to pay to the Applicant, the sum of $518,003.97 presently held on trust by them on behalf of the parties;
(b) Within ninety days of the date of these Orders the Respondent shall pay to the Applicant the sum of $1,822,651.13 ("the payment").
The parties irrevocably authorise the Applicant's Lawyers, Lander & Rogers Lawyers, to pay to the Applicant, when received, the net proceeds of sale of the property known as and situate at 4 M Street Suburb N pursuant to Paragraph 3 of the Orders of the 24th February 2021, with such monies to be deducted from the payment required to be made by the Respondent to the Applicant pursuant to paragraph 1(b) of this Order.
In the event that the whole of the payment has not been made by the due date, then he Respondent do all such acts and things and sign all such documents as required to place the real property known as and situate at O Street, Suburb P in the State of New South Wales (being the real property described in Certificate of Title Folio Identifier …) (the Suburb P property) on the market for sale on the following terms and conditions:
(a) within 21 days of the date of the payment, the parties reach agreement as to the selling agent and the Respondent sign an exclusive Sale Authority in respect of each property save that in the event of default of agreement, the selling agent be as nominated by the President of the Real Estate Institute of New South Wales or their nominee on joint application of the parties or as ordered by the Court;
(b) within 21 days of the date that the payment being due, the parties reach agreement as to the conveyancer(s) to be engaged to act on the Respondent's half with respect to the sale and instruct the conveyancer to prepare a contract of sale and any further documents as required, save that in the event of default of agreement, the conveyancer be as nominated by the President of the Law Institute of New South Wales or their nominee at the joined request of the parties or as ordered by the Court;
(c) the mode of sale and reserve prices shall be as agreed between the parties or in the event of disagreement, as recommended by the selling agent, save that:
(i)the property shall be offered for sale by public auction on an unconditional contact of 60 days or such other period as mutually agreed between the parties;
(ii)the contracts will provide for a deposit payable of not less than 10% of the sale price upon the signing of the contract with the balance to be paid on settlement of the said sales;
(iii)if the property is not sold at the public auction, then the parties will do all things to offer the property for sale by private treaty on such terms and conditions as agreed between them or in the event of disagreement as recommended by the selling agent.
Upon the settlement of the sale of the Suburb P property, the proceeds of sale should be applied as follows:
(a) firstly, payment of all costs, commissions and expenses of the sales;
(b) secondly, in discharge of the mortgages encumbering the property (being registered mortgage … from Q Pty Ltd);
(c) thirdly, so much of the payment as is then outstanding to the Applicant together with interest payable at a rate pursuant to the Family Law Rules;
(d) lastly, the balance, if any, to the Respondent.
In the event that the net proceeds of sale of the Suburb P property as referred to in paragraph 3 of this Order is not sufficient to meet the entirety of the payment due to the Applicant together with interest, the Respondent do all acts and things and sign all documents as may be required to cause the sale of such amount of U Limited Shares held in his name to meet the balance of the payment due to the Applicant together with any interest.
Upon the payment being made in full to the Applicant (together with any interest as applicable), the Applicant shall do all acts and things and sign all documents as may be required to withdraw the Caveat lodged by her, at her expense, over the Suburb P property together with the Caveat lodged by her over Title to the property known as and situate at V Street, W Town.
Pending the payment being made in full to the Applicant (together with any interest if applicable), the Respondent be and is hereby restrained from encumbering, further encumbering, selling, disposing, or dealing with in any manner whatsoever his interest in the Suburb P property and his shareholding in U Limited, save and except for the purposes of making the payment to the Respondent.
Within 60 days of the date of these Orders, the Respondent will do all such acts and things and sign all such documents as may be required to transfer of the Applicant 30% of his shareholdings in the entities known as X Inc and the Y Investment Fund at her expense.
The Applicant otherwise retain for her sole use and benefit the following:
(a) her motor vehicle 1;
(b)her shareholding in the Z Company and AA Pty Ltd;
(c) contents of all bank accounts in her sole name;
(d) furniture, personal belongings and contents in her possession.
The Respondent retain for his sole use and benefit the following:
(a)save as is provided for in these Orders, his interest in the Suburb P property and the proceeds of sale of the Suburb N property;
(b) his interest in the funds lent by him to BB Pty Limited;
(c)his interest in the real property situate at CC Street, II Town Western Australia;
(d)his interest in the corporate entity known as E Developments Pty Ltd as Trustee of the E Developments Trust and the assets of that entity including the real property situate at E Street, Suburb L, in the State of New South Wales;
(e)his interest in the real property situate know as and situate R Street, Suburb S in the State of Victoria;
(f)the balance of his investments in X Inc and the Y Investment Fund;
(g) his motor vehicle 2;
(h) his shareholding in U Limited;
(i) contents of all bank accounts in his sole name;
(j)save as is provided for herein, his interest in the Hopman Superannuation Fund;
(k) furniture, personal belongings and contents in his possession.
Unless otherwise specified in these Orders and, save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party should be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these Orders;
(b)monies outstanding to the credit of any parties in any joint bank account shall be divided equally between the parties;
(c)each party shall forego any claims they may have to any superannuation, long service, redundancy, retirement and like benefits belonging to or owned by the other;
(d)each party shall forego any claims they may have to any monies residing in individual bank accounts belonging to the other;
(e)insurance policies shall remain the sole property of the owner named thereon;
(f)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that the party is entitled to pursuant to these Orders;
(g)any joint tenancy of the parties in any real or personal properties are hereby expressing severed.
AND THE COURT NOTES:
A. That pursuant to Section 90ST of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as participable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pericles & Hopman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9624 of 2016
| MS PERICLES |
Applicant
And
| MR HOPMAN |
Respondent
Contents
Introduction
The law
Onus of proof and findings of fact
Evidence
Documents relied upon
Credit and impression of witnesses
Wife
Husband
Unchallenged witnesses
Non-party witnesses required for cross examination
Relevant Factual History
The Hearing
Issues on Assets
Date of valuation of assets
E Unit Holders
Suburb S
Application to Reopen
Further Issues on Assets
Gifts by the husband
Wife’s Parent’s Investment Property
Shares
Add backs
Conclusion on Divisible Non Super and Super Assets
Contributions
Section 90SM(4)(d)
Section 90SF(3) Factors
Age and state of health
Income, property and financial resources
Physical and mental capacity for appropriate gainful employment
Responsibilities to support himself/herself or another person
Reasonable standard of living
Maintenance
Duration of “marriage” and effect on earning capacity
Cohabitation with another person
Any fact or circumstance which the justice of the case requires be taken into account
Conclusion on adjustive matters pursuant to s 90SF(3)
“Just and Equitable”
“Appropriate”
Conclusion
Costs
Form of final order
REASONS FOR JUDGMENT
Introduction
These are proceedings between the applicant Ms Pericles and the respondent Mr Hopman for a final alteration of property interests following the breakdown of the relationship in which they lived together as a couple in Melbourne and Sydney from 2004. Ms Pericles alleges that their de facto relationship lasted until January 2015 whereas Mr Hopman contends that the relationship broke down in May 2014. For reasons which appear below, I find that the parties’ de facto relationship concluded in January 2015.
Given that there was no dispute about the existence, as opposed to the duration, of the de facto relationship I can refer to the applicant, Ms Pericles, as the wife and to the respondent, Mr Hopman, as the husband.
The hearing was of eight days duration being six days in March 2019 and two days in August 2019. On 23 April 2020, the husband filed an application to re-open the proceedings to adduce evidence about the impact of the COVID-19 pandemic on the valuation of assets subject of the proceedings. That application was opposed and I dismissed for want of admissible evidence. My reasons for that decision appear as case neutral citation [2020] FamCA 465 and I incorporate those reasons into these reasons. In February 2021, the parties sought, by consent, that I make orders to facilitate the sale of real property and the disbursement of the proceeds of sale. That Order was made on 24 February 2021.
I have found the net value of the property, in which the interests of the parties can be altered, to be $8,551,917. The wife seeks an alteration of superannuation and non-superannuation property interests in the proportion of 30% to herself to be constituted as to $3,000 by her motor vehicle, a transfer to her of 30% of the shares in two entities and a cash payment,[1] which would necessarily be inclusive of the funds which she received pursuant to the Order of 24 February 2021. The husband seeks an alteration of non-superannuation assets only in the proportion of 15% to the wife and 85% to him. The husband quantifies the wife’s entitlement at $985,943 of which he says that she has already received cash payments on totalling $299,300, $21,920 in shares and that she retains her motor vehicle valued at $3,000. The husband proposes a cash payment by him to the wife of $661,723 in full and final settlement of her entitlement to an alteration of property interests. The wife proposes an adjustment to herself of $2,780,641.[2]
[1] Exhibit “W10”, Submissions on behalf of the applicant, [62].
[2] Ibid.
I am satisfied that it is just and equitable that there be an alteration of non-superannuation and superannuation property interests and that an alteration in the proportions of 30% to the wife and 70% to the husband is appropriate. This adjustment is to be applied to superannuation and non-superannuation interests which I have found to be valued at $8,551,917, a net value of divisible assets which is more than is contended for by the husband and less than is contended for by the wife.
The law
There are a number of jurisdictional facts of which the Court must be satisfied to obtain an alteration of property interests under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) upon the breakdown of a relationship in which the parties have resided together on a genuine domestic basis. None represent an obstacle in this case but I will recite them to put beyond doubt that I am satisfied that the jurisdictional requirements are met.
First, there must be a de facto relationship. That is conceded in this case. Had there been an issue, a party can make an application seeking a declaration about the existence of a de facto relationship under s 90RD of the Act.
Second, the de facto relationship must have broken down. This is in contradistinction to parties who were legally married and who can apply for an alteration of property interests during the subsistence of the relationship. The distinction comes about because the definition of de facto financial cause in s 4 of the Act includes the phrase “after the breakdown of the de facto relationship” in each descriptor. Here there is no dispute that the parties’ relationship has broken down, although there was a dispute about when that breakdown occurred.
Third, the relationship must have ended after 1 March 2009 when the de facto property provisions of the Act commenced operation. It will become apparent that I find that the parties ceased to reside together on a genuine domestic basis relationship in January 2015.
Fourth, s 39A(2) of the Act provides that, to institute proceedings one of the parties must be an Australian citizen, ordinarily resident or present in Australia on the day on which the application was filed. I am satisfied this requirement is met, inter alia, by virtue of the parties being Australian citizens.[3]
[3] Wife’s initiating application filed 5 October 2016, 3; Husband’s response to initiating application filed 6 January 2017, 7.
Fifth, s 90SK of the Act imposes a geographical requirement for declarations and alterations of property interests. Section 90SK(1) provides that either or both parties to the de facto relationship must be ordinarily resident in a participating jurisdiction when the application is filed. Section 90SK(2) provides, inter alia that, in addition to the s 98K(1) requirement about residence at the date of proceedings being instituted, either or both parties to the de facto relationship must have been ordinarily resident during at least a third of the relationship in a participating jurisdiction. A participating jurisdiction includes Victoria, where the proceedings were instituted, and New South Wales. Both states are referring states within the meaning of s 90RA of the Act. Accordingly, the parties’ meet this qualification without recourse to the exceptions concerning substantial contributions or a child being born of the relationship (there were no children of this relationship). Section 90SD of the Act imposes a geographical requirement for spousal maintenance and urgent maintenance applications in the same terms as s 90SK.
Sixth, s 44(5)(a) of the Act requires, unexceptionally, that the institution of a de facto financial cause must be within two years of the end of the de facto relationship or the parties to the relationship consent to the application. Here, the wife’s initiating application was filed on 5 October 2016 which was within 2 years of the end of the de facto relationship (which I have found to be January 2015).
Once jurisdiction is established, as is the case here, s 90SM of the Act confers a broad power on the Court to make a property settlement order. There are five steps to the exercise of the Court’s power to alter interests in the property of the parties or either of them.
I am required to identify the existing legal and equitable interests of the parties in property. In this case, subsets of the identification of interests in property are:
a)The agreement or appropriateness of the date of valuation of all assets being 31 January 2019;
b)Determination of valuation disputes which the husband holds personally as well as the developments in E Street and Suburb S, various loans and shares he received when the professional firm of which he was a principal became a public listed corporation.
I have to determine whether it is just and equitable to make an order altering the parties’ interest in property. In this case I am satisfied that, as a result of the choices made by the husband and wife to end their de facto relationship, their common use of property, which is essentially property held by the husband to the exclusion of the wife, is no longer practicable. Independently of me being satisfied (as I am) that the requirement under s 90SM(3) is met, both parties have sought an alteration of property interests and neither contended that it was not just and equitable for the Court to make such an order.
I am required to take into account the financial, non-financial and homemaker contributions to property (including property no longer owned by the parties) in accordance with ss 90SM(4) (a), (b) and (c) of the Act. Particular issues in contention include the identification and evaluation of:
a)the wife’s non-financial contribution made directly or indirectly to the acquisition, conservation or improvement of any of the husband’s property, whether or not the property has ceased to be owned by him;
b)the contribution made by the wife in the capacity of homemaker and to the welfare of the family constituted by the husband and the wife.
I must consider the effect upon the earning capacity of any proposed order on the earning capacity of either party (s 90SM(4)(d)) and the matters under s 90SF(3) insofar as they are relevant including, but not limited to, whether monies paid by the husband to the wife post separation should be added back or regarded as monies paid in partial satisfaction of her entitlement to a property settlement.
I need to be satisfied that the order which I propose to make is appropriate within the meaning of s 90SM(1) of the Act.
Onus of proof and findings of fact
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact, including the aforementioned jurisdictional facts, is a finding of fact.
These reasons identify my factual findings and the matters which inform the exercise of my discretion according to the statutory framework.
Evidence
Documents relied upon
The single expert report of Ms B sworn 8 July 2019 was relied on by the parties in relation to the husband’s interests in E Development Pty Ltd as trustee for the E Development Trust and E Pty Ltd, and FF Investments Pty Ltd as trustee for the Hopman Investment Trust and the wife’s interest in Z Limited.
The wife relied on the following documents at trial:
a)Second Amending Initiating Application filed 21 February 2019;
b)Affidavit of Mr GG Pericles filed 14 February 2019;
c)Affidavit of Ms HH filed 14 February 2019;
d)Affidavit of Ms JJ Pericles filed 14 February 2019;
e)Financial Statement sworn 21 February 2019;
f)Affidavit of the Wife sworn 21 February 2019;
g)Affidavit of the Wife sworn 7 March 2019;
h)Affidavit of Mr GG Pericles filed 7 March 2019;
i)Affidavit of Mr KK sworn 7 March 2019.
The husband relied on the following documents at trial: [4]
[4] The respondent husband filed an affidavit affirmed by Ms OO on 27 February 2019 and an affidavit by Ms PP sworn on 13 February 2019 but at trial the husband did not seek to rely on these affidavits.
a)Husband’s Amended Response filed 31 October 2017;
b)Affidavit of Mr LL affirmed 10 February 2019;
c)Affidavit of the Husband 10 February 2019;
d)Affidavit of Mr MM sworn 13 February 2019;
e)Affidavit of Mr QQ sworn 13 February 2019;
f)Affidavit of Ms QQ sworn 13 February 2019;
g)Affidavit of Mr RR affirmed 13 February 2019;
h)Affidavit of Mr SS affirmed 13 February 2019;
i)Affidavit of Mr F sworn 13 February 2019;
j)Affidavit of Ms TT sworn 13 February 2019;
k)Affidavit of Ms UU sworn 13 February 2019;
l)Affidavit of Mr VV sworn 13 February 2019;
m)Affidavit of Ms WW affirmed 13 February 2019;
n)Affidavit of Mr XX sworn 14 February 2019;
o)Affidavit of Ms YY affirmed 14 February 2019;
p)Affidavit of Mr ZZ affirmed 14 February 2019;
q)Husband’s Financial Statement affirmed 4 March 2019;
r)Affidavit of the Husband affirmed 4 March 2019;
s)Affidavit of Mr AB affirmed 4 March 2019;
t)Affidavit of the Husband affirmed 6 August 2019;
u)Husband’s Application in a Case filed 6 August 2019;
v)Affidavit of Mr ZZ affirmed 7 August 2019.
Credit and impression of witnesses
At most, witnesses give evidence of their recollections which are always tainted by their perspective. I do not regard any witness in this case, whose evidence was tested in cross examination, to have given evidence dishonestly or with an intention to mislead. The affidavit evidence was drawn in order to create a particular impression in the reader, upon first reading, but frequently does not descend to provide the detail upon which those impressions can properly be drawn. Consequently, the affidavit material is not conclusive or as probative as more balanced evidence would have been. There was a great deal of detail on some irrelevant matters but little detail around some relevant issues, such as non-financial and homemaker contributions.
Wife
The wife presented as nervous, fidgety and quietly spoken at times. However, she remained resolute in her responses and made concessions readily particularly in relation to the value of assets. There is a clunkiness to some of the wife’s affidavit evidence which was drafted to identify her day to day contributions within the parties relationship relevant to s 90SM(4). In some instances, I am satisfied that the wife’s description of what she did overstated her case. However, my impression is that this was as a result of her affidavit being drafted for, and adopted by, her rather than from an intention to mislead the Court into an assessment that her contribution was more valuable than it was. An example is her statement:
35. Around this time, [the husband] and I discussed investing in property. [The husband] was by this time 40 years old and had not invested in real property to date. I arranged appointments, spoke with agents and undertook comparable sales evidence and research. In 2009 I located an apartment at 2 M Street Suburb N. [The husband] told me that he “was only interested in continuing to rent and only wanted to inspect a one-bedroom rental property” (or words to that effect). After some persuasion, I convinced him to inspect the two-bedroom apartment for sale and we subsequently bought it.
The drafting gives the husband no express credit for his contributions notwithstanding that it would have been easy to do so, such as by mentioning that he paid for the property. The wife’s statement was, as far as she was concerned, a correct statement of her contribution but did not identify what the husband did, with the result that she did not present a balanced or accurate picture of their respective contributions.
There were other instances where the drafting could have been more even handed but in which what the wife deposed to was not untrue. I accept the submission of Mr Weil that the wife’s evidence exaggerated her contributions. It is the contributions as I have found them to be, and not those described by her, that I take into account.
There were some instances in which the wife’s evidence was incorrect. Such as the circumstances surrounding the disposal of the husband’s interest in AC Pty Ltd (discussed below at [60-61]). A further example is her evidence which conflicts with the evidence of Mr SS in relation to conversations about the workings and decision making in AK Partnership. I accept that may have been the wife’s perception but her evidence was unreliable.
I regard the wife as an honest witness whose evidence was at times inaccurate.
Husband
In the witness box, the husband presented as intelligent but also apathetic and occasionally unkind and arrogant. He had to be pushed to make concessions, particularly around the date of separation but he did make concessions. There was no embarrassment or remorse even when it was apparent that his contention that the relationship ended in 2014 was untenable. The husband’s evidence, to the effect that he continued to have an intimate sexual relationship with the wife after May 2014 merely because she wanted to conceive a child rather than as an incidence of their ongoing domestic relationship, would have reasonably offended the wife. I also do not accept that was the case. The husband impressed me as giving evidence by sticking to a script which he had adopted because he understood that evidence in certain terms, if accepted, would minimise the wife’s entitlement in these proceedings. When challenged, his justification for stretching the truth was to refer to the evidence as being how he recollected the facts and to admit the possibility that the recollections of the wife and her witnesses may differ from his own.
As I have observed below, [5] the attitude the husband displayed to the wife in his evidence was harsh compared to his apparent regard for her during and after the relationship. I cannot definitively conclude that these proceedings led to a change in the husband’s appreciation of the wife but the introduction of lawyers and the litigation process does appear to be proximate to the change. The reasonably generous financial provision that the husband made for the wife in the late stages of the relationship and after separation are at odds with the dismissive regard which he at times demonstrated in affidavit and oral evidence before me.
[5]Reasons for decision, [120].
Like the wife, the husband’s evidence accentuated his contributions or minimised the wife’s contributions. In so doing, he was not dishonest but he was imprecise and, like the wife, was unreliable in some respects.
In cross examination by Mr Sweeney, the husband was asked about his conduct of proceedings before Cronin J in 2017, particularly the hearing on 3 October 2017 when Ms Swann appeared for the wife and Ms Stoikovska SC appeared for the husband. There, by an Application in a Case filed on 17 August 2017, the wife sought a part property settlement which, by a Response to an Application in a Case filed on 28 September 2017, the husband opposed on the basis that the wife had already received $300,000 from him on account of her entitlement to an alteration of property interests or a part property settlement. The payments in question appear below in these reasons at [117]. Before Cronin J, the wife alleged that at least some of the $300,000 had been paid to meet her taxation liabilities arising from the 2013/4 financial year, due to the monies being distributed at the direction of the husband from his trust. The husband denied this was so. On 11 October 2017, Cronin J dismissed the wife’s application for and part property settlement. On 21 November 2017 Cronin J ordered that “[the] applicant will pay the respondent's costs associated with her Application in a Case filed 17 August 2017, fixed in the sum of $15,000 and payable no later than 17 May 2018.”
The wife maintained before Cronin J and now that she did not know that monies were coming from the husband’s trust account and would incur a tax debt. Before Cronin J, the husband denied that was so and stated, significantly, that he had always paid the tax incurred by the wife in relation to the distributions from entities which he controlled. The husband denied that $30,000 of the payment of $50,000 (2 x $25,000) was attributable to the wife’s tax liability.[6] At the final hearing, to refute the husband’s denial that the two payments of $25,000 on 10 June 2014 were made towards her liability for income taxation arising out of trust distributions made at the direction of the husband ($30,000) and to cover some IVF costs ($20,000), the wife produced a bank statement of the husband from June 2014 which showed the descriptor for the two payments of $25,000 going into the wife’s bank account as “Tax and IVF”.[7]
[6] Affidavit of the Husband affirmed 4 March 2019, [225(c)], [230(b)]
[7] Exhibit “W6”.
The husband deposes in his trial material for this hearing that he made the payments totalling about $300,000 “so that [the wife] was not under financial stress during a difficult time”. In cross examination the husband stated that when he made the payments, he was of the view that these were part property payments.[8] When pressed, his evidence was that he wanted the wife to have peace of mind but that he was of the mind that they were partial property settlement payments. He stated that he did not consider the first or second payments (totalling $20,000) to be on account of the wife’s property settlement. However, in an email in August 2014 he referred to the two payments of $10,000 as part of the wife’s eventual entitlement. That is, in relation to the second payment of $10,000 on 5 June 2014, he stated that he was of the same view as he was when he made the payment on 20 May 2014 which was that his “general mindset was that these payments would be taken into account when we got to final settlement.”[9] I asked if he was altering his previous evidence that the first payment was for peace of mind and he replied “that was just a – a reflexive, sort of, just giving her some money, yes”.[10] When asked again about the 5 June 2014 payment and whether it was also a “peace of mind” payment, the husband conceded that his “ultimate intention” was to give the wife peace of mind.[11]
[8] Transcript in Confidence, 22 March 2019, pp. 239-240.
[9] Transcript in Confidence, 22 March 2019, p. 240, 12-13.
[10] Transcript in Confidence, 22 March 2019, p. 240, 16.
[11] Transcript in Confidence, 22 March 2019, p. 240, 19.
The husband finally conceded in examination in chief that $30,000 was paid to the Australian Taxation Office on the wife’s behalf and that the liability for taxation arose because of a trust distribution attributed to the wife at his direction. The transcript is as follows:[12]
MR WEIL: In paragraph 225(d) you say:
I deny [the wife’s] assertion that I paid her money for her to meet her taxation liabilities.
You go on to say:
I deny her assertion that [the wife] had not previously realised that funds were being distributed to her by trust.
[12] Transcript in Confidence, 21 March 2019, pp. 160-161, 34-30.
What do you say about that?---I would like the first sentence deleted.
HER HONOUR: You would like what, sorry?---The first sentence deleted.
So you no longer deny it?---That’s correct.
Well, I’m not prepared to do that. You can give evidence to the effect that you no longer deny it, but that isn’t just a minor error. That’s changing part of your case?---Is – if - - -
So you can give some – you now say that one of the $25,000 payments was to meet taxation liability that arose from distributions by the trust to the wife?---From financial year 2013.
Yes?---The amount of 30,000.
30,000 not – so that was how much was paid?---Well - - -
So was part of the:
..made two payments of 25,000 on 10 June 2014.
?---Mmm.
So $30,000 of that $50,000 was attributable to tax; is that right?---
HUSBAND: -- Yes, I – if it’s those payments. I found an email from August where it referenced $30,000 to cover that tax that I – I was unaware of before that.
HER HONOUR: --- Well, the only evidence has – the evidence has always been from the wife that one of those $25,000 payments was to meet the taxation liability and the other – although I don’t know whether it was quite one or the other – was to meet the IVF costs?---
HUSBAND: --- Yes, I believe she referenced one of the payments from 2015 for that, which was incorrect.
HER HONOUR: ---The husband says 2013 tax liability of wife for $30,000 was part of June 2014 advances. Is that right?---
MR WEIL: ---Yes.
Under cross examination, the husband explained that he had only discovered that the wife’s earlier assertion before Cronin J was correct when he was looking at emails after Court during the final hearing. I asked why the husband had not checked his emails and other records in 2017 when the wife first maintained that $30,000 were funds of which she had no benefit. The husband replied that, in 2017, he had relied on his memory and he was otherwise “completely oblivious to it”. However, that changed when he read an email detailing his reimbursement of $30,000 to the wife in the course of the final hearing. [13]
[13] Transcript in Confidence, 22 March 2019, p. 222, 33.
In cross examination, the husband was asked if the above payments, totalling about $300,000, were gifts by him to the wife, to which the husband replied: “given that we had discussed the termination of the relationship, they were considered more instalments by me in a final settlement.”[14] However, he conceded the characterisation of the payments as being on account of any property settlement was “probably” another instance of private thought on his part rather than anything he communicated to the wife.
[14] Transcript in Confidence, 22 March 2019, p. 239, 15-17.
Unchallenged witnesses
Most of the deponents of affidavits were not required for cross examination:
a)The husband’s witnesses, Mr LL (husband’s nephew), Mr MM (husband’s mortgage broker and friend), Ms WW (former colleague at AK Partnership), Mr SS (former colleague at AK Partnership), Mr QQ (husband’s niece), Ms QQ (husband’s niece), Mr RR Hopman (husband’s brother), Ms TT (friend), Mr ZZ (husband’s accountant and business associate), and Mr AB (friend and business associate) were not cross examined.
b)The wife’s witnesses, her brother and sister, Ms JJ Pericles and Mr GG Pericles (wife’s sister and brother), Mr KK (husband’s former colleague at AK Partnership), and Ms AD (mother’s treating psychologist) were not cross examined. Ms AD’s report was not relied on by the wife at the final hearing but was part of the husband’s response in his trial affidavit. The wife did not reply to the references made by the husband to Ms AD’s report.
c)Ms HH (Single expert valuer of E Street, Suburb L, NSW) was not cross-examined. Ms HH’s report is annexed to her affidavit and is dated 24 January 2019.
Where the evidence of deponents not required for cross examination is relevant, I accept their unchallenged evidence.
Non-party witnesses required for cross examination
Mr F was the husband/wife’s witness who gave evidence about, the E Development Trust and the unit holding within that trust, in which Mr F deposes that the husband is holding a unit on trust for Mr F.
Mr XX was the husband/wife’s witness who also gave evidence about the E Development Trust and the unit holding within that trust, with Mr XX holding three of the units.
Ms UU was the husband’s witness who gave evidence about the husband gifting her $25,000 as, what she deposes, was a personal bonus for the work she did for the husband as his secretary at AK Partnership, and the wife’s involvement in attending and hosting social events for the husband’s work and colleagues.
Ms YY was the husband’s witness and colleague at AK Partnership who gave evidence about the husband loaning her a total of $8000 by way of two payments but she had not yet repaid the husband.
Ms B was the single expert witnesses.
I will give my impression of these witnesses when I consider their evidence at the relevant point in these reasons.
Relevant Factual History
There was a great deal of detailed evidence upon which the parties relied. Just because I have not mentioned evidence does not mean that I have not taken it into account.
A narrative of the parties’ relationship as it emerged from the evidence provides the relevant factual history and the basis for my findings on the period of cohabitation, contributions, and certain of the adjuster factors referrable to maintenance and the significance of monies received by the wife post-separation. Unless otherwise specified, the evidence relates to circumstances at the conclusion of evidence in August 2019.
The applicant wife is 47 years old having been born in 1973. She suffers from depression and anxiety for which conditions she receives assistance from her GP and psychologist. The wife graduated from university in 1998. She has not been admitted or practiced as a lawyer. The wife is employed by Z Company as a consultant, but my impression is that the venture is at an early stage. I regard the wife’s employment as notional.
The respondent husband is 53 years old having been born in 1968. He previously worked as a professional and retired in December 2017. He is now occupied in property development and investment.
The parties first met in 2002. They commenced a relationship in early 2004 and started to cohabit when the wife moved into the property the husband had been renting in Suburb AE, Melbourne. A year or two later, the parties moved to rental premises at AF Street, Suburb AG. The husband paid the rent on both residences. The wife was responsible for the majority of cooking, cleaning and washing. The husband deposes that he and the wife maintained separate finances throughout the relationship and time they lived together. Whilst the husband asserts separate financial arrangements, it was not demonstrated on the evidence. Indeed he appeared to provide the overwhelming financial support for the household and his money was available to the wife to run the household.
At the commencement of the relationship the wife was conducting a retail business through AA Pty Ltd that operated a retail store in Suburb AH and later an online retail store. The businesses traded as “AI Business” and “AJ Business”.
At the commencement of the relationship, the husband was a professional and a partner of AK Partnership. The husband had begun working at AK Partnership part time in 1988 and 1989 before being taken on as a trainee professional in 1990. In 1996, he became a registered professional and a Fellow of the Australian professional institute. The husband was promoted to Associate in 1997 and became a ‘goodwill’ partner in 2000. He was the youngest partner to be admitted to AK Partnership and eventually became an equity partner. The husband was also part owner of a venue in the Melbourne CBD called AC Pty Ltd and held a one-half interest in AL Pty Ltd. Within a year or so of cohabitation, the husband took up an interest in a leisure activity business.
The husband relies on the evidence of Mr ZZ in relation to the businesses in which he was involved when the parties commenced their relationship in 2004. Mr ZZ is a practising accountant and partner of the firm AM Pty Ltd. His affidavit was affirmed on 14 February 2019. Mr ZZ was not required for cross examination. I accept his evidence insofar as it is relevant.
The wife’s evidence was that she assisted with the operation and management of the leisure activity business as well as the painting of the inside of the premises. The leisure activity business was closed and the building sold in 2011. The husband denies the wife’s involvement, deposing that he had “nothing” to do with the management and operations and so the wife was not involved.[15] He also states that the operator of the business moved to NSW and the business was wound up in 2015.
[15] Husband’s affidavit affirmed 4 March 2019, [184(a)].
In or around 2001 or 2002, the husband, Mr AB and two other friends Mr AP and Mr AQ, established AC Pty Ltd to operate a venue.
In June 2002, the husband invested in AL Pty Ltd with the intention to set up a bar. Mr ZZ’s recalls there were “4 or 5 investors and that they, combined, put in about $300,000.” In 2005 or 2006, AL Pty Ltd was sold after recording significant development costs but never trading or being set up as a venue. The leasehold interest was sold with planning approval for a venue. Mr ZZ’s recollection was that “AL Pty Ltd recovered most or all of its costs (and investments) but made little or no gain.”
The parties commenced cohabitation in 2004. The husband alleged that he owed the Australian Taxation Office $198,385.42 as at 1 July 2004. Counsel for the wife correctly identified that the husband had failed to disclose this debt until Mr ZZ’s affidavit was filed in February 2019. In relation to the husband’s personal taxation, Mr ZZ states at [59-61] that he has handled the husband’s personal taxation compliance since early 2000s. Mr ZZ states that:
At 1 July 2004, [the husband’s] ATO integrated client account tax debt balance was $181,579.09 and [the husband’s] ATO income tax account debt balance was $16,806.33. [The husband] owed the ATO a total of $198,385.42.
Whilst counsel for the wife was critical of the husband’s lack of responses to requests for disclosure, on balance, I am satisfied that the husband had a liability for personal income tax of $198,385.42 at about the time the parties commenced cohabitation.
In 2008, the business AC Pty Ltd was sold. The wife deposes that she assisted the husband with the business in its operation, promotions, staffing, marketing, and financials. The wife’s evidence was that it became apparent to her that the business was not profitable and after discussions with the husband, they agreed to sell the husband’s interest in AC Pty Ltd. The husband denies the wife’s alleged involvement in the business, stating that he was only a silent partner from when they commenced their relationship hence there was no scope for her to be involved. He further states that it was his business partner, Mr AB, who decided to sell the business and that the sale was not a decision reached by or between himself and the wife.
Mr AB affirmed an affidavit on 4 March 2019 in support of the husband. He deposed that, after starting AC Pty Ltd, the husband and Mr AB bought out Mr AP and Mr AQ. The husband paid $35,000 on Mr AB’s behalf, as Mr AB did not have enough money at the time. The husband did not ask Mr AB to pay interest on the $35,000 and no interest was paid. Mr AB deposed that he repaid the husband $35,000 “2 or 3 years later”. Mr AB states that he and his wife Ms AB “did most of the work to set up and then operate the venue.” Mr AB deposes that in 2003 the husband withdrew from direct involvement in the operations of AC Pty Ltd and effectively became a “silent partner” in the business. This was a year prior to the husband and the wife commencing cohabitation. Mr AB deposed that had previously met the wife when she was the girlfriend of another of Mr AB’s friends before becoming the “girlfriend” of the husband. Mr AB deposes that the wife “came to the venue from time to time.” Mr AB goes on to state that the wife did not assist in “establishing, marketing or operating the venue”, which evidence directly contradicts the evidence of the wife. As Mr AB was not required for cross examination and his evidence is not otherwise impugned, I accept it. To the extent of the inconsistencies, such as the wife’s statement that she assisted the husband in the operation of AC Pty Ltd and then convinced him to dispose of his interest, I prefer the evidence of the husband and Mr AB over the evidence of the wife.
In April 2008, the husband’s father passed away after an illness. Then the husband’s mother also became ill before passing away in August 2008. The wife visited the husband’s mother in W Town on her own the day before she died. The wife deposes that the parties would regularly visit W Town to spend time with the husband’s parents. The wife’s evidence was that she also attended medical and specialist appointments of the husband’s parents.
The wife’s case is that she supported the husband’s career. She deposes to hosting dinners and parties for the AK Partnership partners. This included Friday night drinks at their home, regular dinners during the week and sometimes more formal dinners. The wife deposed that these functions were necessary in progressing and improving the husband’s relationship with the AK Partnership partners who had previously expressed their doubts about the husband’s commitment to AK Partnership when he had business interests outside of AK Partnership, with AC Pty Ltd and AL Group. The wife deposed that she had to take days off from her retail business to prepare for these occasions and consequently her business suffered.
The husband’s evidence is that the wife had “some involvement” with his work with AK Partnership which included attending “some” and “a few” events but not hosting regular dinner parties or Friday night drinks every week. The husband says that they rarely hosted dinner parties and if they did, it was with friends of whom some were AK Partnership colleagues. In relation to Friday night drinks, the husband says that the “regular routine” was to have drinks at work or at a bar nearby and then “occasionally, but rarely” go to the home after. The husband denies that these infrequent events impacted the wife’s business or that they were held to advance his career, stating that his partner position was part of his progression at the firm and that he had been a partner for 4 years prior to the relationship.
The wife deposes that when the husband’s secretary left AK Partnership in 2006, she (the wife) then “took over” organising the husband’s travel and itineraries for work. She deposes that she also researched appropriate restaurants for the husband to attend with clients and maintained an updated list of the latest restaurants in Sydney for the husband to select from as well as distributing this list to friends, colleagues and family. The husband denies that the wife took over organisation of his travel and itineraries, stating that his then secretary, Ms WW, worked for him throughout 2006. The husband’s evidence was that the wife occasionally organised travel for the conferences she attended.
Ms WW affirmed an affidavit on 13 February 2019 which was filed in support of the husband. Ms WW was the husband’s secretary from 1998 until she took maternity leave in 2007. Ms WW recommenced her employment as the husband’s secretary on 7 April 2008. Ms WW took another period of maternity leave from 24 September 2008 and was scheduled to return to work in 2009 when the husband moved to the Sydney AK Partnership office. Ms WW then decided not to return to AK Partnership and, thereafter, did not work with the husband. I am satisfied that the wife’s reference to Ms WW leaving work in 2006 is incorrect and that Ms WW was working with the husband until sometime in 2007.
In relation to the conferences the husband attended for AK Partnership, Ms WW deposes that the husband “often booked his travel for various conferences himself, or had another staff member make the booking.” Ms WW states that she booked one flight for the husband in the time she worked for him.
Ms WW states that when she was working for AK Partnership, regular work functions were held for the professionals, partners and staff, as well as a Christmas party, regular lunches and Friday night drinks. Ms WW “attended many of those functions.” Ms WW states that: “The main purpose of the function was to maintain staff morale and provide the staff with an opportunity to get to know each other in a social setting.” Ms WW states [4] that she is: “not aware of any functions for clients that were arranged by AK Partnership.”
In relation to the wife, Ms WW deposes that the wife, to whom she refers as the husband’s “then girlfriend”, did not attend functions at which she (Ms WW) was present with the husband and other AK Partnership staff except on “a few occasions” when some AK Partnership staff “went out socially after the function or after business hours.” Ms WW deposes that the wife did not host any of the functions that she attended with the husband or other AK Partnership staff. Ms WW further deposes that she does not recall seeing the wife at the AK Partnership office premises. Their contact was when the wife called “from time to time” to speak with the husband of which Ms WW put the call through to the husband.
Ms WW was not required for cross examination. I accept her evidence. However, Ms WW’s evidence does not significantly diminish the wife’s case given the temporal limitations of Ms WW’s observations, that Ms WW was not responsible for arranging the husband’s travel and the fact that there is no evidence to suggest that Ms WW was invited to all functions and events at AK Partnership.
The wife deposes that the husband told her that it was “important” for her to attend conferences and work functions. In April 2005, the wife attended a conference with the husband for AK Partnership in North Queensland. She deposes that she “assisted [the husband] in every aspect of these functions” and that she was involved in strategizing about the husband’s business relationships and personal matters. She states that the husband said to her words to the effect that he “needed to project a stable family and home life” to be taken seriously at his job.
The husband strongly denies that the wife was involved in all aspects of the conferences and has “greatly exaggerated her involvement in [the husband’s] work and her impact on [the husband’s] career.” The husband denies that the wife had to attend all work functions and conferences, stating that she attended “some” but definitely not all. He admitted that he wanted to present a good image at work but denied the “picture painted” by the wife. He says that the wife wanted to come to the conferences so she could have a “free, luxury holiday” as AK Partnership paid for her flights, accommodation and some other costs.
Mr KK affirmed an affidavit on 7 March 2019 which was filed in support of the wife. He currently resides in Asian Country 1 as the Managing Principal at AK Partnership Asia Pte Limited. Mr KK worked at AK Partnership in Melbourne from July 1999 to July 2015. He worked with the husband in the Melbourne office until the husband’s move to Sydney in 2009. Thereafter, they remained in contact.
Mr KK met the wife in about 2003 and continued to see her and socialise with her at “various AK Partnership functions and outside of work.” Mr KK says that in around 2005, the husband and wife lived with him “for two months when they were moving between homes.” Mr KK subsequently married in 2007 after which he and his wife spent time with the husband and wife and “enjoyed socialising together outside of work.” In the Melbourne AK Partnership office Mr KK observed the wife:
a) join AK Partnership attorneys and staff members in the city for drinks;
b)organise drinks and dinners at her home in Suburb AG with other friends and AK Partnership colleagues and their partners;
c) on occasion, socialise at the AK Partnership office on Friday nights; and
d) attend my wedding in Queensland with [the husband] and with many other AK Partnership partners and attorneys.
When the parties relocated to Sydney, he and his wife “stayed with them at their home in Sydney on at least one or two occasions.” Mr KK maintained contact with the parties whilst in Sydney and gives the example of when in 2010 the husband, Mr KK and “others… sailed a yacht around Europe. Ms Pericles joined us on the yacht at some point.”
The husband deposes that he agrees that Mr KK was a friend and work colleague with whom he sailed and he and the wife were friends of the KKs. The husband deposes that Mr KK and his wife attended dinners or drinks at the husband’s apartment on a number of occasions when the husband and the wife invited “friends” over. The husband denies that the wife ever held a formal dinner for his work colleagues at his home. The husband maintained that Mr KK and his wife attended the husband’s home in their capacity as friends but not as “part of an attempt to enhance [his] position at work” crafted and run by the wife.[16]
[16] Husband’s affidavit affirmed 4 March 2019, [187].
Mr KK was not required for cross examination. I accept Mr KK’s evidence to the extent of any inconsistency with the husband’s evidence. I regard Mr KK’s evidence as corroborative of the wife’s evidence on the common issues to which they deposed. My impression is that the wife did assist the husband by entertaining their mutual friends. It rounded out the husband’s personal image in a way that appears to have been pleasant and attractive and is likely to have enhanced his standing in the workplace. I do not regard the role of friend or work colleague to be mutually exclusive. It is no less a contribution by the wife because she may have enjoyed the company of Mr KK and his wife. I find that the wife made a real and valuable contribution by supporting the husband socially in the context of his work.
My impression that the husband was likely to have been a more generous spirited individual during and after the relationship than he allowed himself to be portrayed in his evidence in these proceedings. I find that the wife did support the husband in the social aspects of his work, not to the extent of weekly dinner parties and entertaining but including some dinners, social occasions and regularly welcoming his work colleagues for planned and impromptu drinks at their home as a continuation of after work drinks. That is a valuable contribution. The husband did not suggest that the hospitality was not well received and appreciated by their guests which, presumably, would have enhanced the husband’s image at work. I am satisfied that the wife would have applied more effort into the presentation of their home and the catering than the husband either understood at the time or was prepared to acknowledge in his evidence.
In 2009, the husband with the wife attended a conference for the International Professional Association in South America. The husband is a member of the International Professional Association. The husband and wife attended further International Professional Association Conferences overseas in 2010, in 2012 and in 2013. The wife deposes that she assisted and encouraged the husband’s involvement with the International Professional Association and assisted in entertaining individuals with whom the husband had formed relationships and their families. The wife states that her involvement in the husband’s international conferences was: “to the direct and complete detriment of [her] own business”. The husband deposes that the wife organised holidays for the two of them to coincide with these and other international conferences. The husband gives the wife little or no credit for her supporting role at the International Professional Association conferences stating that the wife had: “nothing to do with [his progression]” and that she merely attended the pre-organised social program for accompanying persons and dinners that the husband organised. The husband is downplaying the benefit he derived from having an impressive and personable partner (as I find the wife was) interact with the partners of other delegates and delegates themselves. The wife’s attendance benefitted the husband as to his image and his influence at the conference. I accept that the wife was on hand to de-brief with the husband and to discuss what had transpired at the conference each day. The husband also denies that the wife’s attendance was to the detriment of her business. His evidence was that he regularly encouraged and told the wife to work harder at her business. He gave evidence that the wife’s business suffered due to the 2008 GFC and the wife’s refusal to work: “more than the odd day in the shop”. I am satisfied that the nature of the wife’s support of the husband was such that she was distracted from her own business. She preferred to support the husband, not because he expressly dissuaded her from attending to her retail business but because of the nature of their relationship, a relationship in which the husband’s activities dominated. Her relationship with the husband included starting a family and undergoing IVF treatment.
In early 2009, the wife’s evidence was that the husband told her that his work performance was suffering and that he had sought compassionate leave, which was subsequently denied, after struggling with the passing of his father in April 2008 and his mother in August 2008. The wife says it was at this time that the husband advised her and that she became aware that the husband had been asked to relocate to Sydney for the purpose of taking over from a senior colleague who was retiring and establishing a new path for AK Partnership in Sydney. In March 2009, the husband moved to the Sydney office, however his senior colleague decided not to retire. The husband’s evidence is that he took over some of the files of one of the Senior Associates in the senior colleague’s team.
Between 2009 and 2010, the parties commuted between their rented apartment in Sydney and Melbourne home. The wife says this placed strain on her ability to run her retail business. She deposes at [33] that at this time she was “effectively deriving no income from it following [their] relocation to Sydney”. The husband denies the wife’s assertion that she did not derive an income. The wife also says that she continued to regularly host and entertain the husband’s colleagues at their home in Sydney as it was located close to the office and people would attend the home after ‘Friday night drinks’ at the AK Partnership office. The husband denies this, stating that this occurred on “a few” or “a couple” of occasions and if people did attend the home, it was just that the wife was present.
“Appropriate”
Section 90SM provides that in property settlement proceedings, after the breakdown of a de facto relationship, the Court may make such orders as it considers appropriate with respect to the property of the parties to the de facto marriage or either of them – altering the interests of the parties to the de facto relationship or either of them.
In this case, the orders which I propose will produce a result whereby the husband has appreciably more than twice that to which the wife is entitled which, on the facts of this case, is an appropriate outcome.
Conclusion
I am satisfied that it is just and equitable to alter the interests of the parties in property and that the resolution provided herein is appropriate.
Costs
Any party wishing to make an application for costs may do so in accordance with the Family Law Rules 2004 (Cth). My preference will be to avoid a formal assessment of costs by a Registrar of the court and to fix the quantum myself. Accordingly, the parties should endeavour to reach agreement on quantum (as opposed to liability) and some memorandum of costs should be prepared and submitted with the application. Regardless of the basis upon which the applicant for costs seeks that his or her costs be calculated, I will be assisted by a memorandum of costs drawn in accordance with the Family Law Scale.
Form of final order
I have largely followed the structure of the orders sought by the wife. The husband has been accorded procedural fairness in relation to that form of order, because it was tendered at the hearing. However, since the parties’ cases were closed and submissions were received, the husband has sold the apartment at M St Suburb N so that is no longer available as security in the event of default. I have included the Suburb P property as a property to be sold in default of the payment being made but, because of the indebtedness I understand attaches to that property, I appreciate that there should perhaps be some other property offered by way of security. I have not obtained any submissions from the parties in relation to further and alternative security for the payment of monies to the wife.
I have circulated this draft judgment to the parties and request that counsel draw my attention to typographical corrections, mathematical errors and other obvious mistakes. [93] If I have misunderstood their submission or omitted to consider an issue that was raised, a party can raise that omission with the other side and then with me although this is not an opportunity to reargue their case or raise any new issues for my consideration. A relevant amendment would, for instance, be to include a further property for security in the event of default, if a further security property is required. The parties responded[94] with suggested amendments to the orders sought by the wife and not opposed by the husband. I have largely adopted them. In this respect my calculation of the final payment due to the wife is $19.90 less than calculated by the wife.
[93] For a discussion of this process, see of H&T [2018] EWHC 3692 (Fam), at [79-80] and the decision of the Supreme Court in Re L and B (Children) [2013] UKSC 8.
[94] Exhibit “W14” correspondence dated 21 April 2021 at 4.18pm.
I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 April 2021.
Associate:
Date: 23 April 2021
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