Ramon & Ramon

[2008] FamCA 324

FAMILY COURT OF AUSTRALIA

RAMON & RAMON [2008] FamCA 324

FAMILY LAW – PROPERTY – EVIDENCE – Expert Opinion – Valuations based on differing methodologies of two highly qualified experts considered – Whilst neither valuation correct or incorrect, Court preferred valuation which had regard to actual disposal transactions and was not solely theoretical.

FAMILY LAW – PROPERTY – INVESTMENT – The husband facilitated the corporate trustee of the parties’ superannuation fund to provide capital to a corporation in which the trustee acquired shares when corporation unable to repay capital advances – Proceedings in the Equity Division of the New South Wales Supreme Court resulted in the winding up of the corporation – The initial capital contribution was found not to have been opposed by the wife – The husband was found to have acted unreasonably and without the wife’s consent in relation to later contributions – The later monies were accordingly considered in the context of contributions but not added back to asset pool.

FAMILY LAW – PROPERTY – CONTRIBUTIONS – Husband found to have made greater initial financial contribution – Throughout the cohabitation the parties were found to have contributed equally save for recognition of the husband’s financial and non-financial contributions to the care of a child of the wife – Found that an adjustment to contributions post-separation necessary in light of unreasonable investment by the husband of monies relating to the parties’ superannuation fund – Overall contributions found to be 52.3 per cent to the husband and 47.7 per cent to the wife.

FAMILY LAW – PROPERTY – SECTION 75(2) – Any hypothetical consequences for the earning capacity of the husband and of tax implications arising from the disposal of the business considered in context of s 75(2) – Husband found to have greater earning capacity than wife, even where a hypothetical sale of the business was considered – Hypothetical tax implications of sale of the business also considered – The wife found to suffer significant health difficulties – The husband cohabits with a new partner –Found these circumstances warranted an adjustment of 4 per cent.

Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)

Corporations Act 2001 (Cth)

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
IABH & HRBH [2006] FamCA 379
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336
Brisbane City Council v Valuer-General for State of Queensland (1978) 140 CLR 41
Housing Commission of New South Wales v San Sebastian Pty Ltd & Others (1978) 140 CLR 196
Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160
In the Marriage of Davies (1995) FLC 92-646
GWR v VAR (2006) 36 Fam LR 237
Elsey v Elsey (1997) FLC 92-727
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Jones v Dunkel (1959) 101 CLR 298
Oriolo v Oriolo (1985) FLC 91-653
Weir v Weir (1993) FLC 92-338
Black v Kellner (1982) FLC 92-287

APPLICANT: MRS RAMON

RESPONDENT: MR RAMON

FILE NUMBER: PAF 878 of 2006

DATE DELIVERED: 12 May 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: COLEMAN J

HEARING DATE: 10, 11, 12 & 13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Mater

SOLICITOR FOR THE RESPONDENT: John Quinn
John R Quinn & Co

Orders

1. That within 90 days of the date of these orders the husband do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the wife the husband’s right title and interest in the property known as H (“[H property]”).

2. That the husband indemnify the wife and keep her indemnified against any proceedings suits, claims or demands of whatsoever nature brought against the wife in respect of the first mortgage registered against the title of the H property in favour of Permanent Custodians Limited in respect of the said home and within 180 days do all acts and things to cause the existing mortgage in favour of Permanent Custodians Limited to be discharged and the wife to be released from any liability pursuant to the personal covenants given by her in such mortgage.

3. That within 180 days of the date of these orders or upon the husband subsequently complying with his obligations pursuant to such orders, the wife do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the husband all the wife’s right title and interest in the properties known as:

   (a)       P (“[P Property]”);

   (b)       B (“[B Property]”); and

   (c)       D (“[D Property]”).

4. That the husband indemnify the wife and keep her indemnified against any proceedings suits, claims or demands of whatsoever nature brought against the wife in respect of the existing mortgages registered against the titles of the P, D and B properties in favour of:

   (a)       Permanent Custodians Limited; and

   (b)       BankWest

   and against all other liabilities secured or unsecured with respect to the said properties and each of them, including taxation or other costs of realisation of such properties or any of them.

5. That within 180 days of the date of these orders, the husband pay to the wife the sum of $950 000.

6. That, in the event of the husband failing to pay to the wife the said sum of $950 000 within 180 days of these orders, interest shall accrue upon such sum, or so much of such sum as then remains outstanding, at the prime interest rate from time to time prescribed by the Reserve Bank of Australia (currently 7.25 per cent).

7. That, in the event of the husband failing to pay to the wife the said sum of $950 000, together with any interest accrued thereon pursuant to these orders, within 240 days of the date of these orders and/or comply with his obligations pursuant to order 2 hereof, the wife shall be entitled to require the husband to join in the sale of the P and/or B and/or D properties.

8. In the event of the wife requiring the husband to sell the P and/or B and/or D properties pursuant to these orders, then, subject to order 11 hereof, the parties shall forthwith do all acts and things and sign all documents necessary to cause the sale of P property and/or B property and/or D property and in particular shall:

   (a)       Place the P and/or B and/or D properties with an estate agent in the area (hereinafter called “the auctioneer”) for the sale by auction at the earliest possible date.

   (b)       Execute all documents requested by the auctioneer for the sale of the said properties by auction.

   (c)       Request the auctioneer to recommend a reserve price to be placed on the said properties for the purpose of the auction sale and accept such recommended reserve price.

   (d)       Pay to the auctioneer any sum requested for advertising expenses in relation to the auction.

   (e)       Give such instructions as are necessary to solicitors agreed to by both parties, for the preparation of a contract for sale and for the contract for sale to be made available to the auctioneer prior to the auction.

   (f)       Attend at the auction sale of the said properties and negotiate with the highest bidder in the event that the reserve price is not reached.

   (g)       Accept the advice of the auctioneer as to the acceptance of a price less than the reserve price.

   (h)       Execute the contract for sale.

   (i)        Co-operate in every way with the auctioneer in relation to the auction of the said properties including making a key available, allowing inspection of the said properties and at all times requested by the auctioneer and ensuring that the said properties are in a neat and clean condition at the time of inspection by prospective purchasers.

   (j)        Execute all other documents necessary to complete the sale(s) of the properties.

9. In the event that the said properties are not sold:

   (a)       at an auction pursuant to these orders; or

   (b)       within seven (7) days of the date of such auction by negotiation with the highest bidder at such auction,

   the husband and the wife do all acts and things and execute all documents necessary to cause to be held a further action of the said properties within three (3) months after the date of the first auction.

10. Upon the sale of the P, B and/or D properties the proceeds of sale be paid in the following manner and priority:

    (a)       Payment of agent’s commission and auction expenses if any due on the sale of the said properties.

    (b)       Payment of all monies necessary to discharge any existing mortgages on the abovementioned properties and the W property, then:

    (i)Payment of legal costs on the sale of the said properties.

    (ii)Water rates, council rates and other applicable conveyancing adjustments.

    (iii)Payment of any relevant Capital Gains Tax as assessed by P Accountants.

    (iv)$950 000 plus any accrued interest to the wife.

    (v)Balance to the husband.

11. That the sequence in which such of the P and/or B and/or D properties are sold pursuant to these orders be determined by the husband and advised to the wife in writing provided that the wife shall be entitled to require the husband to sell only so many of such properties as shall be necessary to satisfy the wife’s entitlement pursuant to these orders.

12. That in compliance with these orders the wife do all acts and things and sign all documents transfers or writings to transfer to the husband or his nominee all her right title and interest in her shareholding in the companies known as:

    (a)       W Pty Ltd; and

    (b)       YY Partners Pty Ltd (“the companies”).

13. That upon transfer to the husband of the said shareholding the husband do all acts and things necessary to indemnify the wife against any proceedings, suits or claims of whatsoever nature brought against the wife:

    (a)       in respect of any liability of the wife under any debt due to the companies;

    (b)       in relation to or arising out of the wife’s shareholding in the companies;

    (c)       in relation to or arising out of the wife’s directorship of the companies;

    (d)       in relation to any personal guarantees given by the wife in respect of any borrowings of money by the companies.

14. The wife do all acts and things necessary to resign as a director of the abovementioned companies provided that the husband hands to the wife the copy of the minutes of a resolution of the companies recording the wife’s resignation as a director together with a properly drawn and executed form of notification to the National Companies and Securities Commission advising of the wife’s resignation.

15. That upon transfer to the husband of the said shareholding other than for the purpose of enforcing these orders the wife shall otherwise assign to the husband any right or claim she may have at law or in equity against the companies.

16. That the husband in compliance with these orders do all acts and things, call all necessary meetings of W Pty Ltd as trustee of the Ramon Family Trust and pass all such resolutions as may be requested by the accountants for the Ramon Family Trust to finalise all financial affairs with respect to the wife’s interest in the Ramon family Trust and to transfer the assets of the Family Trust to the husband.

17. That the wife transfer to the husband her interest in any joint bank accounts and/or bank accounts of the companies.

18. That the husband and the wife forthwith do all acts and things, call all necessary meetings of W Pty Ltd as trustee of the Ramon Superannuation Fund and pass all such resolutions as may be requested by the accountants for the Ramon Superannuation Fund to transfer to the wife all the wife’s right title and interest in the Ramon Superannuation Fund and to transfer the wife’s superannuation entitlement to a superannuation fund to be nominated by the wife to the trustee within one (1) month of the date of these orders.

19. That the husband do all acts and things and sign all documents necessary to transfer all his right title and interest at law or in equity in the 2003 Toyota Prado motor vehicle registered number … to the wife.

20. That the husband forthwith do all things necessary to transfer to the wife all of his right title and interest in the Australian Scholarship Association Fund.

21. That subject upon compliance with these orders, the husband retain all his right title and interest in:-

    (a)       the boat;

    (b)       the roll-over bond; and

    (c)       the husband’s motor vehicle.

22. That upon the husband’s compliance in full with these orders and otherwise subject to these orders, the wife shall transfer to the husband all her right title and interest including her shares in the following companies:-

    (a)       W Pty Limited; and

    (b)       L Pty Limited.

    (c)       E Pty Ltd.

23. That the husband and wife are solely entitled to all other chattels, assets including their respective superannuation entitlements and resources in their respective names, possession or control or to which they are otherwise entitled and not otherwise referred to herein.

24. That both parties do all things necessary and sign all documents necessary to give effect to these orders.

25. That counsel have liberty to submit agreed minutes of order varying any provision of these orders.

26. That there be liberty to apply on 72 hours notice in relation to implementation of these orders.

27. That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 878 of 2006

MRS RAMON

Applicant

And

MR RAMON

Respondent

REASONS FOR JUDGMENT

1. The proceedings which the Court has heard relate to settlement of property pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”). The wife seeks orders in the following terms:-

   1.That within 35 days from the date of these Orders the Husband shall transfer to the Wife all of his right title and interest in the property situate at and known as [H] (“hereinafter referred to as “the former matrimonial home”).

   2.That also within 35 days from the date of these Orders and upon transfer to the Wife of the former matrimonial home in compliance with Order 1 herein the Husband shall pay to Permanent Custodians Limited, subject to any adjustments as required by these Orders, such sum as is necessary to discharge the mortgage secured over the former matrimonial home.

   3.That subject to Order 4 herein, that, within 35 days from the date of these Orders the Wife shall transfer to the Husband all of her right title and interest in the property situated at [B] NSW; and

   4.That also within 35 days from the date of these Orders and upon the transfer to the Husband of the said [B] property in accordance with Order 3(a) herein, the Husband shall pay such sum as to discharge the mortgage secured over the [B] property together with any other liability currently encumbering the said [B] property to which the wife is jointly or severally or solely liable.

   5.(a)      That within 7 days from the date of default of these Orders the Husband and Wife shall do all things necessary to sell the said [D] property, the said [P] property and the said [B] property for the best price within 16 weeks from the date of these Orders or otherwise by agreement between the parties in writing.

   (b)In the event that the properties are not sold within 16 weeks from the date of these Orders in accordance with Order 4(a) herein, then the parties shall thereafter cause the said home to be sold by public auction within 8 weeks.

   (c)In the event that the parties cannot agree in respect of any aspect of the sale or auction of the said properties (whichever applies) including but not limited to listing agent, reserve price, sale price, choice of auctioneer then the parties shall promptly do all things necessary to appoint the President of the Australian Property Institute or his nominee to advise in relation to such issue and his advice shall be final and binding upon the parties.

   (d)That the proceeds of sale/auction of the home shall be applied as follows:-

   (i)Discharge of the mortgage secured over the former matrimonial home;

   (ii)Discharge of the mortgage secured over the [D] property;

   (iii)Discharge of the mortgage secured over the [B] property;

   (iv)Discharge of the mortgage secured over the [P] property;

   (v)Payment of all agents commission, auction fees and disbursements;

   (vi)Payment of all legal costs and disbursements in relation to the sale/auction;

   (vii)Any fees or disbursements due to the President of the Australian Property Institute or his nominee;

   (viii)Outgoings including water rates and council rates;

   (ix)Any balance thereof to be divided 55% to the Wife and the balance to the Husband.

   6.In the event that either the Husband or Wife fails to do all things and sign all documents necessary to complete the sale of the properties in accordance with Order 5 of these Orders then, either the Husband or Wife shall consent to an application to the Registrar of the Family Court of Australia to do all acts and thing[s] and sign all documents necessary to give effect to Order 1 for the sale of the property in accordance with the provisions of Section 106A of the Family Law Act 1975 as amended.

   7.In the event that the net proceeds of sale of the said [B] property and the said [P] property are insufficient to discharge the mortgages referred to in Order 5 of these Orders, then the Husband shall be personally liable to pay the balance thereof to the Wife plus interest which shall accrue at the prescribed rate from the date of settlement of the last sale of the said properties until discharge of all the said mortgages in full.

   8.That subject to these Orders, both parties shall, both in their personal capacities and in their capacities as Directors and shareholders of [W] Pty Limited as trustee for the [Ramon] Superannuation Fund to forthwith to cause to be paid and/or to be rolled over the entire assets of the [Ramon] Superannuation Fund in the following manner:-

   (a)Pay/transfer to the Wife or her nominee the [Ramon] Superannuation Fund together with all of its assets;

   (b)Pay/transfer to the Husband the balance of the assets owned by [W] Pty Ltd and the [Ramon] Family Trust.

   9.That the Husband forthwith do all things necessary to transfer to the Wife all of his right title and interest in:-

   (a)The motor vehicle registered number […]; and

   (b)The Australian Scholarship Association Fund.

   10.That subject upon compliance with Order 9, that the Husband retain all his right title and interest in:-

   (a)The Boat;

   (b)The Roll-over Bond.

   (c)The Husband’s motor vehicle

   11.That upon the Husband’s compliance in full with these Orders and otherwise subject to these Orders, the Wife shall transfer to the Husband all her right title and interest including her shares in the following companies:-

   (a)[W] Pty Limited; and

   (b)[L] Pty Limited.

   (c)[E] Pty Ltd.

   12.That subject to Order 13 herein, the wife transfer to the Husband [all] of her right title and interest in [YY Partners] Pty Ltd.

   13.That the Husband pay to the Wife from further and sufficient monies to the Wife to ensure that the wife receives a total net asset pool of 55% of all of the parties’ net assets.

   14.That the Husband and Wife are solely entitled to all other chattels, assets including their respective superannuation entitlements and resources in their respective names, possession or control or to which they are otherwise entitled and not otherwise referred to herein.

   15.That each of the parties is solely liable and hereby indemnifies the other in relation to any debt, liability or claim in their respective names not otherwise referred to in these Orders.

   16.That both parties do all things necessary and sign all documents necessary to give effect to these Orders.

1. The husband opposes the granting of relief in the terms sought by the wife, and by his most recent pleading seeks relief in the following terms:-

   1.1Transfer of the former matrimonial home to the wife

   That the husband forthwith do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the wife of all the husband’s right title and interest in the property known as [H] (hereinafter called “the former matrimonial home”).

   1.2Indemnity

   That forthwith on the husband complying with these orders the wife indemnify and keep indemnified the husband against any proceedings suits, claims or demands of whatsoever nature brought against the husband in respect of the first mortgage registered against the title of the former matrimonial home in favour of Permanent Custodians Limited in respect of the said home and that the husband and wife do all acts and things to cause the existing mortgage in favour of Permanent Custodians Limited to be discharged out of the proceeds of the sale of the property owned by the parties and known as [B property] and/or [D property].

   1.3Transfer to the husband of the [P] property

   That the wife forthwith do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the husband all the wife’s right title and interest in the properties known as:

   (a)      [P property]

   1.4Indemnity

   That forthwith on the wife complying with these orders the husband indemnify and keep indemnified the wife against any proceedings suits, claims or demands of whatsoever nature brought against the wife in respect of the existing mortgages registered against the titles of the [P] property in favour of:

   (a)Permanent Custodians Limited;

   (b)BankWest;

   in respect of the said property the husband and wife do all acts and things to cause the existing mortgages abovementioned to be discharged out of the proceeds of the sale of the property owned by the parties and known as [B property] and/or [D property].

   1.5Sale of the [B] and [D] properties

   The husband and wife shall forthwith do all acts and things and sign all documents necessary to cause the sale of [B property] and/or [D property] and in particular shall:-

   (a)Place the [B] and [D] properties with an estate agent in the area (hereinafter called “the auctioneer”) for the sale by auction at the earliest possible date.

   (b)Execute all documents requested by the auctioneer for the sale of the said properties by auction.

   (c)Request the auctioneer to recommend a reserve price to be placed on the said properties for the purpose of the auction sale and accept such recommended reserve price.

   (d)Pay to the auctioneer any sum requested for advertising expenses in relation to the auction.

   (e)Give such instructions as are necessary to John R. Quinn & Co., the solicitor for the husband, for the preparation of a Contract for Sale and for the Contract for Sale to be made available to the auctioneer prior to the auction.

   (f)Attend at the auction sale of the said properties and negotiate with the highest bidder in the event that the reserve price is not reached.

   (g)Accept the advice of the auctioneer as to the acceptance of a price less than the reserve price.

   (h)Execute the Contract for Sale.

   (i)Co-operate in every way with the auctioneer in relation to the auction of the said properties including making a key available, allowing inspection of the said properties and at all times requested by the auctioneer and ensuring that the said properties are in a neat and clean condition at the time of inspection by prospective purchasers.

   (j)Execute all other documents necessary to complete the sale.

   1.6Re-auction of the [B] and [D] properties

   In the event that the said properties are not sold:

   (a)      at an auction pursuant to these orders; or

   (b)within seven (7) days of the date of such auction by negotiation with the highest bidder at such auction,

   the husband and the wife do all acts and things and execute all documents necessary to cause to be held a further action of the said properties within three (3) months after the date of the first auction.

   1.7Distribution of proceeds of sale of the [B] and [D] properties

   Upon the sale of the [B] and [D] properties the proceeds of sale be paid in the following manner and priority:

   (a)Payment of agent’s commission and auction expenses if any due on the sale of the said properties.

   (b)Payment of all monies necessary to discharge any existing mortgages on the undermentioned properties:

   (i)       [H property];

   (ii)      [P property];

   (iii)     [D property]; and

   (iv)     [B property]

   (c)Payment of legal costs on the sale of the said properties.

   (d)Water rates, council rates and other applicable conveyancing adjustments.

   (e)Payment of any relevant Capital Gains Tax as assessed by [P Accountants].

   (f)$325,000.00 to the wife.

   (g)Balance to the husband.

   1.8Transfer of shares in companies and indemnity

   a.That the wife forthwith complying with Order 1.16 hereof do all acts and things and sign all documents transfers or writings to transfer to the husband or his nominee all her right title and interest in her shareholding in the companies known as:

   (i)[W] Pty Ltd;

   (ii)[YY Partners] Pty Ltd;

   (hereinafter referred to as “the companies”).

   b.   That upon transfer to the husband of the said shareholding the husband do all acts and things necessary to indemnify the wife against any proceedings, suits or claims of whatsoever nature brought against the wife:

   i.in respect of any liability of the wife under any debt due to the companies;

   ii.in relation to or arising out of the wife’s shareholding in the companies;

   iii.in relation to or arising out of the wife’s directorship of the companies;

   iv.in relation to any personal guarantees given by the wife in respect of any borrowings of money by the companies.

   c.   The wife do all acts and things necessary to resign as a director of the companies provided that the husband hands to the wife the copy of the minutes of a resolution of the companies recording the wife’s resignation as a director together with a properly drawn and executed form of notification to the National Companies and Securities Commission advising of the wife’s resignation.

   d.   That upon transfer to the husband of the said shareholding other than for the purpose of enforcing these orders the wife shall otherwise assign to the husband any right or claim she may have at law or in equity against the companies.

   1.9[Ramon] Family Trust

   That the husband forthwith on the wife complying with order 1.13 do all acts and things, call all necessary meetings of [W] Pty Ltd as trustee of the [Ramon] Family Trust and pass all such resolutions as may be requested by the accountants for the [Ramon] Family Trust to finalise all financial affairs with respect to the wife’s interest in the [Ramon] family Trust and to transfer the assets of the Family Trust to the husband.

   1.10Transfer of bank accounts to the husband

   That the wife forthwith do all acts and things and sign all documents, forms or writings necessary to transfer to the husband all her right title and interest in the undermentioned bank accounts with the Commonwealth Bank of Australia:

   (a)   Account no. […100]; and

   (b)  Account no. […101];

   1.11Transfer of wife’s superannuation interest to the wife

   That the husband and the wife forthwith do all acts and things, call all necessary meetings of [W] Pty Ltd as trustee of the [Ramon] Superannuation Fund and pass all such resolutions as may be requested by the accountants for the [Ramon] Superannuation Fund to transfer to the wife all the wife’s right title and interest in the [Ramon] Superannuation Fund and to transfer the wife’s superannuation entitlement to a superannuation fund to be nominated by the wife to the trustee within one (1) month of the date of these orders.

   1.12Transfer of Toyota Prado motor vehicle to the wife

   That the husband do all acts and things and sign all documents necessary to transfer all his right title and interest at law or in equity in the 2003 Toyota Prado motor vehicle registered number […] to the wife.

   1.13Furniture

   a.That within fourteen (14) days of the date of this order the wife do all acts and things necessary to prepare two lists of the furniture which was contained in the matrimonial home and that the furniture contained on each list be approximate in value to that contained on the other list.

   b.That the wife transfer to the husband her interest in the items contained in whichever of the said two lists the husband shall so choose and that the husband do all acts and things necessary to transfer to the wife his interest in the items contained on the other such list.

   c.That the wife make available for collection by the husband or any persons nominated by him all of those items contained in whichever of the said two lists the husband chooses pursuant to the above order at any reasonable time requested by the husband and that pending collection of the items by the husband the wife shall properly store and maintain such items.

   1.14Balance of matrimonial property

   That unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or any subsequent orders each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date.

   1.15Appointment of Registrar pursuant to Section 106A

   That in the event that either party refuses or neglects to comply with the provision of any order herein the Registrar of the Family Court at Sydney is hereby appointed pursuant to Section 106A of the Family Law Act to execute all deeds and documents in the name of either the husband or the wife and do all acts and things necessary to give validity and operation to the said order.

   1.16Liberty to apply

   That either party have liberty to apply on seven (7) days notice in the event of any difficulty arising out of the implementation and enforcement of these orders.

2. In his practice direction statement presented to the Court at the commencement of the trial, learned counsel for the husband intimated in relation to “minutes of final orders sought by husband”, “TBA when final figures are known. The intention is that the pool of ‘assets’ (including superannuation) shall be distributed between the parties as to 60% to the Husband and 40% to the Wife”. Perhaps helpful at the outset of what the Court perceives will be necessarily lengthy reasons for judgment is to try to identify, in terms of the ultimate outcome of the proceedings, what is not controversial, as opposed to the controversial issues which require resolution before that stage can be reached.

3. Provided that so doing does not prejudice what is contended to be his entitlement, the husband does not oppose the wife retaining the former matrimonial home at H. The extent to which the husband is obliged to contribute, if at all, to the discharge of the mortgage over H is dependent upon and governed by the determination of the fate of other assets and the terms upon which that occurs.

4. The husband does not oppose orders that he receive the investment properties at D, P and B provided that, to the extent that compliance with the Court’s orders will oblige him to liquidate any of those properties, or is reasonably likely to have that consequence, the revenue implications of such sales be reflected by way of reduction in the value of those properties in his hands.

5. The husband seeks that each party retain his or her superannuation interest and that any disparity of entitlement with respect to such interest be reflected in the division of other assets, and that the Court make orders which would be effective to “split” the wife’s entitlement from the Ramon superannuation fund and vest it in specie in a new superannuation fund to be created for and controlled by the wife.

6. The husband does not oppose the orders sought by the wife with respect to W Pty Limited, either in its capacity as trustee of the Ramon Family Trust or, of the kind just indicated, in its capacity as shareholder of the Ramon Superannuation Fund.

7. The husband does not object the wife having the motor vehicle and the Australian Scholarship Association Fund to which she refers in her minutes of order and, unsurprisingly, does not object to the wife’s suggestion in her minutes of order that he retain the boat, rollover bond and motor vehicle.

8. The husband does not oppose the transfer to him of any interest in the corporation O Pty Ltd (albeit the property of the Ramon Superannuation Fund) but rejects the wife’s assertions that both the monies invested in that corporation, or the monies expended on legal fees in seeking to protect such investment be visited upon him.

9. If successful, both as to the quantum of the assets and with respect to the parties’ entitlements to them urged on his behalf, the husband would not be likely to be required to pay any cash monies to the wife as her minutes of order may entail if the outcome were substantially in accordance with those minutes.

10. It is common ground that the business formerly conducted through Y2 Partners Pty Ltd (in which the parties remain equal shareholders) and more recently conducted by YY Partners Pty Ltd in which the husband is sole shareholder will pass to and/or remain with the husband, albeit the parties disagree significantly as to the value of the business which those entitles represent.

Credit

1. The issue of credit assumes some significance in relation to certain issues in the case, and no significance in relation to other issues. The evidence reveals areas of disagreement which relate more to reliability of recollection than to the veracity of the party whose recollections are involved. So far as credibility in the sense in which that word is usually employed in legal proceedings is concerned, the Court prefers the evidence of the wife to that of the husband where the two are in conflict. Reasons why that is so will follow. Where the reliability of recollection in relation to the details of financial transactions is concerned, the converse applies.

2. Cross-examination of the wife revealed her memory to have been less than entirely reliable in relation to the assets that each of the parties had at the time of the marriage and to the properties generated by a number of particular investment strategies in the latter stages of the marriage. Perhaps because they were the husband’s monies in the former category, and because he had a somewhat greater involvement than did the wife in the investments in the latter category, the husband’s recollection of the sums involved, as detailed in his affidavit evidence-in-chief, was shown to have been more reliable, as was largely conceded by the wife during the course of her cross-examination. It does not however follow that such preference is conducive of disputed issues of fact. The onus remains upon the party asserting disputed facts to prove them on the balance of probabilities.

3. Ultimately, save in relation to the assets at the commencement of cohabitation, little or nothing turns on preferring as more reliable the husband’s account of those transactions to the less detailed recollections of the wife. The implications of the husband’s more reliable recall of what each of the parties had when they married impacts upon the assessment of contributions by virtue of the disparity of capital and/or equity contributions of the parties at the date of marriage.

4. The issue of credibility has rather greater significance as it impacts upon the assessment of contributions during the course of cohabitation and subsequent thereto, particularly in the period prior to separation with respect to the business which the parties commenced to operate in about 1998 and the wife’s utilisation of martial funds in the post separation period. The issue of credibility also impacts significantly upon the view the Court takes of the husband’s investment of approximately $460 000 of the funds of the superannuation fund in an enterprise owned by O Pty Ltd about which more will necessarily be said later.

5. The wife presented as a responsive and candid witness. As the cross-examination of the wife in relation to her superannuation interest at the date of marriage and her savings at that time makes clear, the wife readily conceded gaps in her recollection and/or the absence of documentation to verify her assertions. When corrected with respect to the details of later transactions by reference to documents or circumstances, the wife readily made concessions in favour of the husband. It is difficult to recall an occasion when, although the opportunity clearly presented itself, the wife offered gratuitous criticism of the husband or of his endeavours during cohabitation. Equally important, the wife resisted the opportunity to advocate on her own behalf or seek to aggrandise the nature or quality of her contributions. The Court feels able to comment on these aspects of the wife’s evidence as each of these attributes are regrettably rare.

6. The wife was cross-examined closely, albeit with sensitivity, in relation to health issues. Without resiling from her claims in that regard, the wife made no attempt to capitalise on her medical history and readily conceded in cross-examination her qualifications and experience in the fields of banking and finance.

7. The contrast between the evidence of the wife in cross-examination and that of the husband in cross-examination was stark.

8. It was submitted on behalf of the wife that the husband was evasive and repeatedly chose to use the witness box in order to seek to advocate his own case. Each of those submissions has force. The Court, on a number of occasions urged the husband to refrain from non-responsive self-serving speeches during the course of his cross-examination. Thereafter, for unfortunately short periods, the husband revealed a capacity to answer questions in a responsive way without seeking to advocate his cause, only to revert to his former course of advocacy, within, usually, approximately a dozen or so questions.

9. The concession by learned counsel for the husband that the husband, “a salesman”, was “not a perfect witness” is accurate, if somewhat understated. The husband may be “discursive by nature” as was submitted on his behalf, and that may “not be indicative of untruth” as was also submitted on his behalf, but the qualitative differences in the evidence between the wife and the husband do give rise, in the course of “the trial judge’s real advantages” (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 at 619) to an entitlement, other things being equal, to prefer the evidence of the wife to that of the husband where the two are in variance.

10. Things are not otherwise equal. The husband was submitted by counsel for the wife to be “coy” in respect to his financial arrangements with his partner, Ms F. That submission too has considerable force. Ironically, in the circumstances of this case, absent Ms F having very substantial wealth, which such evidence as there is does not establish to be the case, with respect to her, Ms F’s financial arrangements with the husband would have assumed at best, minor significance. That reality ought to have been known to the husband. For reasons which do not emerge, the husband chose, the Court accepts, to shroud his financial arrangements with Ms F in mystery. Whilst that may have no significant adverse impact according to s 75(2) of the Act, it does adversely impact upon his credibility. This is so because the Court is left to wonder why the husband, a man who claimed, not without justification, to be keenly interested in money generally, and to have adequate recollections of financial transactions in the past, chose not to reveal the financial circumstances of himself and Ms F. That remains a mystery, perpetuated by the husband.

1. The husband’s lack of candour in relation to his own financial interests was perhaps best seen in his evidence with respect to the $105 000 which he withdrew from marital funds prior to learning of Stevenson J’s orders in early 2007. Notwithstanding that the $105 000 had in fact been utilised to purchase a new Mercedes-Benz car for his own use, the husband suggested that he “put back” the $105 000. This was a clear attempt on his part to cast himself in a more favourable light than the facts would permit.

2. Learned counsel for the wife, correctly in this Court’s view, referred to the inconsistency in the husband’s approach to the role of the wife. During the period the parties had the jointly owned corporation through which the finance business was conducted, the husband was at pains to minimise the wife’s role and significance. When it suited him in cross-examination to do so, the husband suggested that he had to get a major firm of chartered accountants to replace the wife in the business.

3. Learned counsel for the wife also relied upon the evidence of the husband in relation to O Pty Ltd, in which he suggested, at least inferentially, that the wife had been a willing and informed equal participant in the investment in O Pty Ltd.

4. There is significance in relation to the wife’s credibility that, when the trial of the proceedings resumed in May, learned counsel for the husband indicated that he hoped to prove that $627 000 received by the wife in the post separation period had not been adequately accounted for by her. That figure reduced in the days which followed to the point, where, correctly and sensibly in the Court’s view, in final submissions learned counsel for the husband resiled completely from any suggestion that funds under the wife’s control had “slid off the table” in circumstances which the wife could not adequately explain. The husband’s assertions with respect to the wife’s beneficial ownership of land in the Middle East followed a not dissimilar course.

5. It is true, as counsel for the husband submitted, that the husband did make some concessions in favour of the wife in his affidavit evidence. However, they can be seen as qualified by his later oral evidence. It is also true that, in close cross-examination with respect to financial statements sworn in these proceedings, the wife was shown to have made errors and omissions. None of these matters is indicative of mendacity on the part of the wife.

6. It was submitted on behalf of the husband that the issue of the paternity of the child B would impact adversely on the wife’s credibility. The Court does not accept that such is the case. B’s status in the proceedings was resolved, on the wife’s instructions, on the basis that her learned counsel intimated to the Court on the first day of the trial. At no time thereafter in any evidence she gave did the wife seek to resile from that sensible and fair approach to B’s significance in the proceedings. The impact of B’s paternity in terms of contributions is one thing, but to suggest that the issue impacted adversely on the wife’s credibility is quite another assertion and one which the Court does not accept to be validly made out on the evidence.

7. As noted earlier, the issue of credibility impacts only on a limited number of issues. The effect of the Court’s conclusions with respect to reliability and credibility is to favour the evidence of the husband over that of the wife in terms of the parties’ initial contributions but to favour the evidence of the wife over that of the husband with respect to contributions during cohabitation and with respect to the O Pty Ltd venture.

8. The concessions made at the conclusion of the trial by learned counsel for the husband with respect to the wife’s alleged interest in land in the Middle East and her alleged failure to account for the fate of $627 000 remove these topics from consideration as issues. It need only be recorded that the Court’s general conclusion with respect to credibility would have led it to find the allegations against the wife with respect to those areas not established had it been necessary to do so.

Material Facts

1. The material facts will necessarily reflect, where relevant, the conclusions with respect to reliability and credibility of the evidence of the parties discussed earlier. The husband was born in November 1954 and is thus now aged 53 whilst the wife was born in May 1956 and is thus aged 51 years.

2. In January 1972 the husband commenced to be employed by the [A] Bank and joined the superannuation fund conducted for employees of that organisation. In 1973 the wife commenced employment with the B Bank of New South Wales.

3. In 1978 the husband purchased an investment property at T for $37 000. The husband asserted that he borrowed $7000 to complete the purchase whilst the wife’s contention was that he had borrowed $29 000. Not surprisingly, there is no documentation which sheds light on the topic and the cross-examination of both parties in relation to the topic was also, understandably, inconclusive, each adhering to his or her recollection of events.

4. Largely for the reasons advanced by learned counsel for the husband in cross-examination of the wife with respect to the comparative earnings of the parties at about the time of marriage, and inferentially perhaps earlier, it seems unlikely that the husband could have accumulated almost $30 000 by the time he was 24 years of age. On the other hand, the husband may well have had more than $7000 when he purchased T property. The husband’s recollection is likely to be more accurate than is that of the wife but that is not conclusive of this issue. On balance, the safest approach to this topic is to conclude that whilst the husband has not proved his case with respect to the funding of T property, the equity conceded by the wife, $8000, was not insignificant some four years prior to the parties’ marriage, and represented a not insignificant initial contribution of equity.

5. T property was rented out and the rental payments applied to the mortgage repayments and other outgoings of the property. The husband asserts that by 1981 he had discharged the mortgage over T property. As with the initial funding of the acquisition of the property, there is, understandably, no documentary evidence impacting upon the probabilities. Had the husband borrowed $7000 as he claimed to purchase the property in 1978 it would be likely that he would have repaid the loan by the time the parties married as he also claims. On the other hand, if something significantly in excess of $7000 was borrowed to complete the purchase of T property, it is unlikely that the husband would have been able to discharge the mortgage, in reliance upon what his counsel suggested to the wife were his earnings at about that time. Although there is no reliable evidence as to the value of T property at the date of marriage or the amount owed by the husband in respect to its acquisition at that time, the husband can be found to have had a not insignificant equity in the property at the date of marriage.

6. In 1981 the wife’s father purchased a 1981 motor vehicle which he gifted to his daughter. The wife still had that motor vehicle at the date of marriage. The same year the husband purchased a second hand Toyota motor vehicle. The husband suggests that he paid $3000 for that vehicle. The evidence suggests that the wife’s father paid $10 000 for her new motor vehicle. Although there is no reliable evidence, at the date of marriage, whilst both parties had a motor vehicle, the wife’s motor vehicle was probably worth more than the vehicle of the husband, although how much more is not known and not of importance in any event.

7. In about December 1981 the parties purchased a property at K for $115 000. The parties disagree as to how that acquisition was completed although they both agree that $20 000 was borrowed on mortgage to complete the purchase. The wife has consistently claimed that she provided $70 000 towards the savings of the parties which were utilised to complete the purchase of North K property and that she had such sum at the date of marriage.

8. Cross-examination of the wife, at least inferentially, suggests that the husband conceded that the wife may have had $30 000 at that time. The husband contends that he had $25 000 which, at least inferentially, he asserted he had accumulated after the purchase of T property in 1978. Cross-examination did not materially alleviate the confusion which the affidavits generated in relation to this topic. The wife conceded in cross-examination that $30 000 had been borrowed to complete the purchase. At least inferentially, the wife rejected the suggestion that the husband had $25 000 at that time. The position is ultimately unclear save to the extent that, in whatever proportions, the parties had $85 000 to put towards the purchase of K property.

9. The husband asserted that the B Bank mortgage was $60 000, that the wife contributed $30 000 and that he contributed $25 000. The wife asserts that the mortgage was $30 000 and that she contributed $70 000 which, with other savings, totalled $110 000, inferentially conceding that the husband had $40 000 at the date the parties married. To conclude other than the parties had approximately equal amounts to provide for the purchase of K property would not be reasonably open on the evidence with respect to this topic.

10. The parties married in February 1982. By that time they had jointly acquired the interest in the K property, the equity in which was not less than $55 000 and could have been as great as $85 000. The wife had jewellery, a motor vehicle and some furniture and an unquantified superannuation interest which has not been quantified at that time or thereafter until the wife ceased her employment with B Bank in 1985. The husband had, in addition to his equity in T property, a motor vehicle and superannuation. The most reliable evidence in relation to the latter suggests a value of approximately $65 000 for the husband’s A Bank superannuation fund.

11. After they married, both parties continued to be employed by the respective Banks referred to earlier. In addition, the husband had some part time work. The evidence does not permit findings to be made with confidence as to the comparative earnings of the parties in that period although the husband’s earnings were likely, inclusive of his part time employment, to have been greater overall than were those of the wife.

12. In July 1982 the husband sold the T property. The only evidence in relation to that transaction is that of the husband and is able to be accepted. It establishes that $65 000 was received on the sale of the property and was utilised for renovations to the K property. The husband thus, within a short time after the marriage, was able to contribute $65 000, the great bulk of which can be seen as having accumulated prior to the date of marriage.

13. In 1985 the wife took long service leave and the parties travelled overseas for two months. The wife ceased employment with the Bank in 1985 and received payment with respect to superannuation and other related benefits the quantum of which the wife could not suggest in the course of cross-examination. The husband continued to be employed by the Bank throughout the 1980s whilst the wife had part time employment during the 1980s.

14. In 1987 the parties sold the K property for $280 000. The parties agree that the mortgage over the property had by that time been discharged. The parties then purchased land at H for $120 000 or $135 000, little turns on which figure is correct, and contracted to build a house on the property for approximately $280 000. The parties borrowed $100 000 from the B Bank to complete the construction of the home on the property. Whilst the home was being built, albeit for a period which is disputed, the parties lived rent free in a home unit owned by the husband’s parents. The period involved was between 6 and 18 months, depending which parties’ version of events is preferred. Neither is inherently preferable to the other in that respect.

15. In 1990 the wife received $10 000 upon the death of her mother which she applied for the benefit of the parties.

16. In 1993 the parties commenced to engage in seven joint venture property development projects with different parties. A number of these ventures were undertaken in the wife’s name on accountant’s advice in order to reduce the incidence of taxation on the anticipated profits on these developments. The husband was extensively engaged in the projects, as was the wife, albeit to a slightly lesser degree.

17. The first investment property was at N in partnership with an owner/builder, Mr NE, and comprised six two bedroom home units and one three bedroom townhouse. The parties contributed $165 000 to the venture, $45 000 which they had by that time saved, together with $120 000 raised by way of mortgage over H property. The venture generated a profit of approximately $52 700.

18. The parties then undertook a project with Mr NE and Mr and Mr ME which involved the acquisition of property, demolition of an existing building and construction of seven home units at a cost of $409 214, the parties contributing $166 997 in order to generate a subsequent profit to the parties of $60 000.

19. In October 1994 the mortgage over H property, which had been taken out to fund the property investments earlier referred to, was discharged. In the same year the parties invested in a development at W as part of a syndicate of six or seven investors who included Mr W. The parties contributed approximately $90 000 to the development which was completed in May 1996. The venture generated a taxable profit of $80 000 in the hands of the parties and a further $40 000 profit on the sale of one unit in the development to which the wife was entitled by virtue of the investment. As with the previous investment, on accountant’s advice, the wife was the investor in order to reduce the incidence of taxation.

20. On 5 December 1994 the wife gave birth to B who is now aged 13 years. The husband is not the biological father of the child B. For the purposes of this case, the non-paternity of B was conceded by the wife’s counsel to mean:-

    (a)That the husband will be credited for making direct and indirect financial and non-financial contributions to B’s welfare from the date of his birth until the second date of separation of the parties and that thereafter, at least indirectly, for financial contributions to the child’s welfare; and

    (b)The wife cannot successfully contend for any s 75(2) adjustment by virtue of any future financial or non-financial obligations falling upon her as a result of having responsibility for B’s care, development and welfare.

21. In 1995 the corporation W Pty Ltd was incorporated. The parties equally acquired the issued share capital in the corporation and became its directors. At all material times W Pty Ltd has operated as the trustee of the Ramon Family Trust and Ramon Superannuation Fund. It has not otherwise traded.

22. In March 1995 the husband resigned his employment with the A Bank and received $160 908.22 in total as a consequence of such employment. The husband had been employed by the bank for some 23 years by that time and had been married to the wife for 13 of those years. The husband’s pre-marriage superannuation interest was worth approximately $160 908.22 comprising superannuation of $136 697.25, long service leave $14 918.10, bonus of $6900 and $2392.87 annual leave loading. These monies were later utilised in and for the acquisition of real estate.

23. In 1995 a third property development investment was made, in premises at S. That was a development of 42 units. The parties invested $263 000 which was obtained from the profits of the N and W investment properties and the husband’s Bank termination monies. The development was completed in 1999 and generated a taxable profit of $233 000. The evidence is not entirely clear as to whether the investment was made in the name of the husband or the wife, although the introduction to the property development ventures in the husband’s affidavit of evidence-in-chief suggests all seven “joint venture property development projects which were entered into with different groups of people for each particular joint venture” were entered into “in [the wife’s] name”.

24. In April 1995 the husband and Mr L formed a company H Finances Pty Limited. In the same year the Ramon Family Trust was established. The trust appears to have been a comparatively standard discretionary trust in which the parties are discretionary beneficiaries. As noted earlier the parties effectively jointly control the corporate trustee.

25. Also in April 1995, the husband, Mr L and Mr MM incorporated DW Pty Limited trading as “[A Pty Ltd]”. These entities were associated with financial activities.

26. In October 1996, the parties as part of a syndicate purchased real estate for construction at S of apartments. The vehicle for the investment was W Pty Ltd as trustee for the Ramon Family Trust which invested $130 000, together with an investment of $100 000 by the wife. Neither party suggested what the profits of that joint venture were although it appears common ground that there were profits and that they were applied for marital purposes.

27. In 1998 the fourth of the seven property development ventures entered into was undertaken and involved the property at B, twenty-one home units at that address being developed by RD Pty Ltd of which the Ramon Family Trust and Ramon Superannuation Fund acquired 25 per cent of the shareholding, investing approximately $800 000 for the purchase. The project was completed in 2006. W Pty Ltd contributed $161 614 together with a further $412 500 returning a gross profit of $654 647 and a further $177 365 distributed to the trustee on behalf of the two trusts. The husband and wife purchased a unit in the project which purchase they made in 2005 and continue to retain.

28. Joint property development was entered into in 1998 and was at R. W Pty Ltd as trustee of the Ramon Family Trust acquired the property, secured development approval and sold the property as a development site with an approved DA for apartments which was carried out by RD Pty Ltd. A profit of $59 345 was generated by this development.

29. In 1998, the sixth project was undertaken at G. W Pty Ltd as trustee for the Ramon Family Trust invested $128 000 for the purchase and development of two penthouses by RD Pty Ltd which was completed in 2003, the Ramon Family Trust receiving $138 376 in 2004 in return for its prior investment of $128 000.

30. In 1998 the company H Finances Pty Ltd, which had been operated by the husband and Mr L, ceased to actively seek new business and, in effect, caused 50 per cent of trail commissions referable to earlier transactions and worth approximately $100 per month, to be assigned to W Pty Ltd as trustee of the Ramon Family Trust.

31. In 1998, the husband, Mr L and Mr RN formed a financial services business through the corporation Y1 Partners Pty Ltd. The husband and Messrs L and RN, together with A Pty Ltd, incorporated Y1 Partners Pty Limited which traded as Y1 Partners. The husband worked in that business until October 2000.

32. In 1998 the parties purchased shares in GJ Coles Limited in the name of the wife. Dividends from those shares were paid into the parties’ joint account.

33. In 1999 the seventh joint venture was undertaken at Y, a development if eight residential and two commercial units by RD Pty Ltd. Funds of $65 000 were invested by the parties and by W Pty Ltd. The husband and wife received $9271 profit and W Pty Ltd received $37 750 profit.

34. On or about 27 July 1999 the parties through W Pty Ltd as trustee of the Ramon Family Trust purchased in W Pty Ltd’s name a unit at A for $131 487. A mortgage representing 80 per cent of the purchase price was raised, the parties contributing the balance through W Pty Ltd. The property was leased out and rental applied to mortgage payments and other outgoings.

1. In February 2000 the wife was diagnosed with breast cancer and, a few weeks later, underwent a mastectomy followed by six months of chemotherapy.

2. In September 2000 the husband, Mr L and Mr RN dissolved their business relationship in Y1 Partners Pty Ltd. The trailing commissions receivable by that company were then directed to DW Pty Ltd as trustee of a unit trust the shareholders in which were W Pty Ltd on behalf of the Ramon Family Trust as to 50 per cent and an entity on behalf of Mr L as to the other 50 per cent. The remaining trailing commissions were paid to H Finances Pty Limited as trustee for Y1 Partners Unit Trust, one third of the units in which were held by W Pty Ltd on behalf of the Ramon Family Trust, the remaining two thirds being held by entities on behalf of Mr L and Mr RN.

3. In September 2000 the parties incorporated YY Partners Pty Limited, the shareholders in which were the husband and wife (equally). The husband was the corporation’s sole director. The company generated income through financial services. The husband asserts that he was the primary generator of the corporation’s income through his endeavours. The wife asserts that she assumed a significant role working in the corporation. The husband’s evidence at points suggests she played no role and made no contribution to the running of the company, at other points conceding that she made some contribution and, albeit inadvertently, during cross-examination at one point suggesting that her later departure from the business necessitated the retention of a major firm of accountants to do the work which she had done.

4. In 2001, through W Pty Ltd as trustee of the Ramon Superannuation Fund, the husband caused a total of $460 000 to be invested in O Pty Ltd. It is inappropriate and probably impossible, to deal with this controversial topic in the present context. Further reference will be made to it later in these reasons for judgment.

5. In August 2001, W Pty Ltd as trustee for the Ramon Family Trust sold the A unit property for $148 431, thereby generating a profit of $8472. Later that same year, in their joint names, the parties purchased an investment property at P for $320 000 which was financed from savings. The property was leased and managed by an estate agency thereafter.

6. In September 2003, the parties purchased in joint names an investment unit at D for $380 000. The acquisition was financed by a mortgage for $380 000 secured against H property. The property was thereafter leased and managed by an estate agent, the rental generated being utilised to service the mortgage and outgoings with respect to the property.

7. In September 2003 the husband purchased a boat and trailer for $70 000 together with camping gear and fishing rods.

8. The husband asserts that the parties separated under the one roof on or about 25 December 2004. The wife asserts this occurred on about 18 January 2006. Ultimately little turns on which of the parties is correct in relation to this issue. With respect to the contributions continuing thereafter in the manner shortly to be outlined, the general preference of the wife’s evidence over the husband’s where there is conflict, inclines the Court towards the wife’s version of the date of separation in preference to that of the husband.

9. In May 2005, whether or not the parties were then separated under the one roof, they purchased a unit B for $1.65 million of which $1.599 million was borrowed from BankWest pursuant to a mortgage over the property and collateral security over the B and D units. The property at B was thereafter leased and managed by a real estate agent, the rental payments generated being applied to service the mortgage and other outgoings with respect to the property.

10. On 1 April 2006 the husband vacated the H property. The wife and B continued to reside there and are still living in the home to the exclusion of the husband.

11. On 1 July 2006 the husband incorporated Y2 Partners Pty Limited in which he was the sole director and shareholder. Thereafter all new business was conducted through Y2 Partners. The trailing commissions from business previously generated by and earlier referred to as YY Partners continued to be received through that entity. Existing clients of YY Partners were also serviced through it.

12. On 17 July 2006 the husband caused three term deposits held on behalf of the Ramon Family Trust at the Commonwealth Bank of Australia (“CBA”), to be consolidated into one term deposit of $1 271 048.58. Such sum was then rolled over at three monthly intervals.

13. On 14 December 2006 the husband and Ms F as tenants in common in shares of 1 per cent to the husband and 99 per cent to Ms F, purchased the property at LD for $1 350 000 which was made up of $997 313 by way of mortgage loan from GE Money, $13 500 contributed by the husband and $329 187 contributed by Ms F. The husband makes the mortgage repayments and has for some time. The quantum of such mortgage payments does not readily emerge from the husband’s documentation but they would undoubtedly be significant sums.

14. The parties were divorced in the Federal Magistrates Court on 7 March 2007. On 18 March 2007 the parties each withdrew $100 000 from the Ramon Family Trust and paid as to $50 000 to each of the parties. On or about 19 November 2007 the parties caused W Pty Ltd as trustee for the Ramon Family Trust to withdraw $200 000 from the CBA account and pay one half to each of the parties on account of the parties’ legal fees.

The property of the parties to the marriage

1. At the completion of the trial of the proceedings, and at the request of the Court, learned counsel for the parties produced a document in tabular form a document headed “[Ramon] Joint Balance Sheet”. It is apparent that, when the document was produced, the final position of the parties in relation to each of the entities was not known. The document which is reproduced below includes, by way of highlighted entry, matters which were clarified during the course of counsel’s submissions. The completed document can be seen as revealing where the parties are in disagreement. To the extent that the parties are in disagreement, and the disagreement relates to items of minimal significance (such as the trailer) the Court includes no value as neither party has proved a valuation by admissible evidence.

2. The table incorporates the effect of post-trial email correspondence from both counsel in relation to a motor vehicle.

Asset	Who owns asset		Husband's Value contended for ($)	Wife's Value contended for ($)	Figure agreed ($)
H property	Joint		1 050 000
D property	Joint		400 000
P property	Joint		478 000
C property	Joint		2 000 000
CBA wife Bank Account Styled "Superannuation Savings Account"	Wife		65 196
CBA Account Streamline	Wife		2525.69
CBA Account "Netbank saver"	Wife		50 224
Coles Myer Shares (500) @$13.47 each	Wife		6935	Agreed
ASG (School fund)	Joint (Husband has)	16 500
Haines Marine Boat	Husband	Disregarded
Trailer	Joint		600	N/A
Corporate and other entities as dealt with by both Experts, WH and EX (including YY Partners and Y2 Partners, W Pty Ltd, Ramon Family Trust and Ramon Superannuation Fund (but excluding car $19000)	2 858 855	3 364 724
Add-back investment by parties by O Pty Ltd and AL P/L including loan to O Pty Ltd	No add-backs	460 000 capital and 190 000 costs
Husband’s interest in LD property	Husband as to 1%	13 500
Husband's Bank Account	Husband	24 767
Motor vehicle	Wife	20 000
Liabilities	Who owns liability		Husband's Value ($)	Wife's Value ($)	Found/Agreed ($)
Loan from Bank West for B property secured over B and D properties	Both		1 591 704
Permanent Custodians	596 128

The value of the Y business

1. So far as the corporate and other entities dealt with by Ms WH and Ms EX are concerned, the wife’s figure can, on Ms WH’s evidence, be regarded as being reduced by two figures, they being $19 050 with respect to a car which, without admission, learned counsel for the wife waived any right to pursue and $75 000 which Ms WH suggested would be payable by way of capital gains taxation (“CGT”) on the realisation of the business of Y2 Pty Ltd and YY Pty Ltd if the husband were “properly advised”. The figure of $3 364 724 can accordingly be regarded as $3 270 674.

2. That figure could also, to an unquantified extent, be further reduced in that the sum to which Ms WH refers would, after CGT, be the property of the corporation rather than of the husband. There would be potential revenue implications resulting from the monies being distributed to the husband by way of actual or deemed dividend unless the corporation was liquidated and the monies received by way of return of capital to the shareholder in which case there may be CGT implications.

3. In the course of her cross-examination, the wife conceded that she considered the expenditure of $190 000 by way of legal fees with respect to the O Pty Ltd investment to be appropriate for reasons which she there briefly detailed, notwithstanding her objection to the investment of the superannuation funds monies in the project for reasons which she also detailed. Accordingly, although the add-back of $190 000 continued to be pursued by learned counsel for the wife, it may not be necessary to consider that sum as an add-back.

4. Ultimately that question is likely to be resolved by the Court’s conclusion with respect to the $460 000 investment. It is common ground that the husband, albeit on the basis asserted by counsel for the wife, should retain the entitlement to receive whatever might be recovered by way of verdict and/or costs from the O Pty Ltd litigation. If the Court concludes that the husband ought to be responsible, or primarily responsible, for the $460 000 investment in O Pty Ltd, leaving him to benefit from whatever is recovered, and the costs of its recovery, given that the litigation which may lead to recovery has been paid for by the husband, would be just and equitable.

5. There is also the question of CGT with respect to the realisation of the investment properties. That has been quantified and is not in dispute, the question being whether it is likely that the contingent liability represented by CGT on the sale of investment properties will materialise as a result of the orders the Court makes. CGT in the sum of $354 563 [$140 823 + ($5434) + $219 174 = $354 563] could thus be appropriately included as a contingent liability when considering the parties assets and liabilities. (Exhibit R21).

6. The evidence suggests that, if he is able to do so, the husband wishes to retain the investment property portfolio which he has been instrumental in creating. The evidence does not enable the Court to make a finding as to the likelihood of a sale of any property within the investment portfolio, or when any such sale might occur. On the other hand, the very nature of investment properties is that they are acquired with a view to ultimate realisation on financially advantageous terms. Absent a change in the revenue legislation, and there is no suggestion of such change, reducing or eliminating the incidence of the payment of CGT on the realisation of investment properties, it can thus be said that at some time in the future the husband will have the proceeds of sale of the investment properties reduced by the payment of CGT. When that occurs, and what impact it will have cannot possibly now be known.

7. Also relevant in this context is the reality that the Court has found the value of the YY Partners business, which the husband will retain, to be significantly greater than the husband asserted. There is no suggestion that the husband will realise the YY Partners business, either for the value the Court has accepted or any lesser sum. There is no evidence establishing that the husband could reasonably expect to be able to borrow against the value of the YY Partners business, whatever a potential commercial lender might conclude that value to be. Realistically, having regard to the sum the husband is likely to have to raise to satisfy the wife’s entitlements, it is difficult to see how he could reasonably hope to retain all of the investment portfolio.

8. Cases such as IABH & HRBH [2006] FamCA 379 illustrate the difficulty which surrounds the exercise of discretion with respect to CGT and realisation costs. Each case turns on its own facts and circumstances. In this case there is a contrast between the retention of the H property by the wife, the realisation of which would clearly not result in the payment of CGT, and all the other real property of the parties, which the husband is likely to receive, which will, when sold result in the payment of CGT. In the circumstances of this case, on balance, it is more conducive to a just and equitable outcome to take into account as a liability the CGT on realisation of investment properties to which reference has been made than to attempt to accommodate it, presumably within the context of s 75(2), in some unquantified way.

9. The alternative is either to delay the finalisation of the parties’ financial relations for what may be a lengthy period, to produce an injustice to one of the parties by ignoring the incidence of CGT on the realisation of the investment properties or to potentially place one of the parties in the position of having to bring a s 79A application in the future, either as a result of ignoring CGT or making a necessarily arbitrary adjustment for it. On balance, although less than a perfect solution to a problem which does not have a readily apparent and compelling resolution, the Court proposes taking into account the CGT in the figure agreed by the experts for both parties.

10. So far as superannuation interests are concerned, counsel for both parties have treated the superannuation interests of the parties as property. The parties are in agreement as to the quantum of such interests in reliance upon the agreement between the parties’ experts. The superannuation interests, as the joint statement of experts makes clear, are included in the figures which are revealed in the table for corporate and other entities. It is apparent that any monies recovered from the O Pty Ltd litigation will increase the assets of the Ramon Superannuation Fund. Both experts have valued the superannuation fund on the basis that the O Pty Ltd investment will be lost in its entirety. Such an approach is clearly open to the Court and, in the circumstances of this case the Court will include the superannuation interests of the parties as property and, also consistent with the submissions of learned counsel for both parties, will adopt a “global” approach to the determination of the entitlements of the parties pursuant to Part VIII of the Act.

11. As noted earlier, the parties are in disagreement as to the value of the “corporate and other entities”. Each party relied upon expert evidence in support of the contentions as to the value of the parties’ corporate and other entities. On behalf of the wife Ms WH, a highly qualified and experienced chartered accountant whose expertise to give opinion evidence in relation to the value of corporate and other entities was sensibly not challenged, provided a report on 4 September 2007. On behalf of the husband, Ms EX, a chartered accountant with similarly impressive qualifications and experience provided a report on behalf of the husband also, perhaps co-incidentally, on 4 September 2007 provided a report commissioned by the solicitors for the husband.

12. Ms EX had earlier, on 8 November 2006, prepared a report at a time when she held an appointment as a joint expert. Prior to giving oral evidence, the utility of which was thereby considerably enhanced, and the time the process required considerably shortened, Ms WH and Ms EX conferred and produced a comprehensive and very helpful memorandum setting out the matters in respect of which they agreed and disagreed and, the basis of their disagreements.

13. The experts provided a helpful tabular “summary of amended opinions”. It is instructive for present purposes to reproduce that table in the Court’s reasons.

Assets	EX $	WH $	Difference $
Shares held in:
[YY Partners] Pty Limited	1 629 781	1 537 831	(91 950)
[Y2 Partners] Pty Limited	45 501	643 320	597 819
[W] Pty Limited	2	2	0
Interest in:
[Ramon] Family Superannuation Fund	1 225 857	1 225 857	0
[Ramon] Family Trust	2470	2470	0
Loans to:
[YY Partners] Pty Limited	1162	1162	0
[YY Partners] Pty Limited	(95 202)	(95 202)	0
[Y2 Partners] Pty Limited	(35 085)	(35 085)	0
[Ramon] Family Superannuation Fund	9008	9008	0
[Ramon] Family Trust	75 361	75 361	0
Total	2 858 855	3 364 724	505 869

1. Some preliminary observations are appropriate before considering the not uncomplicated critical area of disagreement between the experts. For present purposes, it is unnecessary to preserve the legal distinction between YY Partners Pty Ltd and Y2 Partners Pty Ltd. Effectively, the two entities simply reflect the reality that, after the parties finally separated, the husband created a new entity, Y2 Partners, which became the vehicle through which all new business which would otherwise have continued to be channelled through YY Partners could be channelled. For this the husband ought not be criticised, particularly as there is no suggestion that this strategy has the potential to adversely impact upon the entitlement of the wife.

2. It is apparent from the tabular summary of the opinions of the parties’ experts that the difference of $505 869 relates to what might be loosely termed “the [finance] business” conducted by YY Partners and/or Y2 Partners. The difference of $505 869 is in fact reduced by reason of the two matters earlier referred to, the $19 050 with respect to a motor vehicle and the $75 000 CGT impost upon the realisation of the business from the higher value contended for by Ms WH. The real difference is in reality closer therefore to approximately $411 819, being the sum of $505 869 less $19 050 and $75 000 ($411 819).

3. It is unnecessary at this stage to refer further to the Ramon Family Superannuation Fund beyond noting that the beneficial entitlements of the parties in that fund are agreed by the experts to be $348 658 on the part of the wife and $877 199 plus $9008 on the part of the husband.

4. Under the heading “Matters on which we Disagree” Ms WH and Ms EX set out the reasons which led Ms WH to contend that the value of the finance business was $2 181 151, and Ms EX to suggest its value was $1 675 282. The “Summary of Areas of Disagreement” referred to some matters which ultimately do not assume significance, notably the appropriateness of allocating the goodwill of the finance business as between YY and Y2 Partners.

5. The crux of the dispute was expressed by Ms WH and Ms EX in the following terms:-

   The differing methodologies adopted by the experts in valuing [YY Partners Pty Ltd] and [Y2 Partners] arise as a result [of] the experts [sic] disagreement as to the nature of the goodwill attaching to the Business operated by the [Y] entities. [EX] considers that any goodwill of the Business (other than the value of ongoing trail commission income, which is included by [EX] in her assessment of value) is derived from the Husband’s personal exertion efforts and represents the Husband’s personal goodwill. As a result, [EX] does not consider that there is a saleable commercial goodwill attaching to the Business itself. [WH] considers that the Business should be valued on a going concern basis and as such does attract a commercial goodwill value as profits could continue to be derived by the Business that are not directly liked to the ongoing activities of the Husband. [WH’s] calculation of the commercial goodwill of the Business includes her opinion of the market value of the loan book of the Business. [WH] considers the loan book of the Business to be a separately identifiable intangible asset that is both enduring in nature and transferable to a purchaser.

1. The term “extremely industrious” applied to the husband’s activities by his learned counsel applies, on the evidence before the Court, to the activities of both parties. It could not be clearer that, until the marriage broke down, both parties applied themselves to the best of their considerable skills and abilities in pursuit of their various activities as they have earlier been detailed under the heading “Material Facts”.

2. The acquisition, conservation and improvement of matrimonial homes to which learned counsel for the husband referred also involved the wife, albeit in all probability to a lesser extent than the husband in terms of money and physical effect.

3. Subject to the question of initial capital contributions and consideration of the concessions made on the wife’s behalf with respect to the child B, only by elevating financial contributions, or contributions with respect to assets above those in the nature of homemaking could the Court conclude the husband made a greater contribution from the date of marriage to the date of separation than did the wife.

4. The provisions of s 79(4) are instructive in relation to the comparative weight which may be attracted by particular types of contributions. Had the legislature intended that contributions within ss 79(4)(a) and/or (b) were in some way to be considered superior to those within s 79(4)(c) it would no doubt have said so. Commonsense, and the absence of any statutory provisions to the contrary suggest that, in a case such as this, where each party contributed in all respects, unequally in favour of the husband in some, unequally in favour of the wife in the other, to regard their periodic contributions globally as other than substantially equal would be quite artificial and unjust.

5. It is also necessary to consider the position of B. Perhaps ironically, in learned counsel for the husband’s case outline, prepared well after the husband was aware that he was not B’s biological father, learned counsel for the husband referred in his analysis of contributions to the wife having been B’s “principal caretaker…while he was young” and to the husband having “assisted before and after work and on weekends” with B.

6. The wife, for personal reasons, elected not to either pursue any contribution based entitlement by reference to parenting of B, or any s 75(2) adjustment by reason of his future support, and to acknowledge that the husband would be credited for his financial and non financial contributions to B’s welfare during cohabitation in return for not disclosing the identity of B’s father. That was a choice the wife made, and the Court has no need to say more about it.

7. What the Court must however do in the context of contributions, is to evaluate the impact on the husband’s contribution based entitlement of his financial and non-financial contributions to the welfare of the child for whom he did not have any legal responsibility for a period of approximately 12 years. Included in that period was “the sole care of [B] at a time when the wife was undergoing medical treatment for cancer”.

8. The husband’s overall contribution based entitlement must be enhanced by reason of the nature and quality and duration of his contributions towards B’s welfare. Assessing that is both subjective and difficult. It might reasonably be thought that the husband derived some pleasure with his time with B over those 12 years. Quantification of the financial burden which B represented to the husband is not possible and has not been suggested in any event. It is clear, as was conceded by learned counsel for the husband, that the husband’s care of the child was greatly exceeded by that provided by the wife. In fairness to the husband, it was never suggested to the wife that the nature or quality of her contributions to the endeavours of herself and the husband were ever adversely impacted by her need to care for B. Ultimately the Court cannot pretend that any element of science is entailed in assessing the impact on contributions overall of the husband’s financial and non-financial contributions to B’s welfare, save to record that it would have significantly more than a token or minimal impact upon the recognition of the husband’s contributions.

9. To the date of separation, the husband’s significantly greater initial capital contributions, and his contributions to the welfare of B demand that his contributions be seen as greater than those of the wife, to a not insignificant extent. In the Court’s view the contribution based entitlements of the parties to the date of separation favour the husband by 55 per cent to the wife’s 45 per cent. This division translates as a disparity of approximately $486 000 [$2 670 759.85 – $2 185 167.15 = $485 592.70].

10. It is then necessary to consider the post separation period about which, save with respect to O Pty Ltd, not a great deal has been said by learned counsel for the parties, sensibly, in the Court’s view for reasons which will be briefly indicated.

11. Neither counsel strenuously suggested that, save in such manner as may arise from the evidence with respect to O Pty Ltd, the post separation contribution based entitlements of the parties should be enhanced. Realistically, adopting a broad approach to the post separation period, the evidence does not suggest that either party was so unfairly advantaged or disadvantaged as to render revisiting their contribution based entitlements, other than to the extent that the Court’s conclusions with respect to O Pty Ltd suggest that they should be.

12. After separation, the wife had the use of the matrimonial home and received monies for which she did not have to work. The husband has had the greater income but, in the ways revealed by the evidence, each party has had the use of substantial sums of capital in the post separation period. Were it possible to do so, and it is not on the evidence, an audit of the movement of monies in the post separation period may reveal that to some minor extent one party has faired better than the other. Absent such exercise however the Court does not so conclude.

13. One matter requiring consideration relates to O Pty Ltd in respect of which the Court has earlier recorded its findings. Objectively, the Court’s findings with respect to O Pty Ltd involve a conclusion that the husband unreasonably caused $260 000 of the parties’ superannuation fund to be lost. To fail to reflect that in the contribution based entitlements of the parties, having declined to notionally add the sum back to the asset pool would be unfair to the wife. In the Court’s view an adjustment of $130 000, being approximately 2.7 per cent of the net assets of the parties, would be appropriate. The effect of so doing is to credit the wife with 50 per cent of a sum generated late in the marriage and not impacted by the inequality of contributions considered to be appropriate for the pre separation period. In so doing the contribution based entitlements of the parties become 52.3 per cent to the husband and 47.7 per cent to the wife.

14. The Court does not perceive that the husband can complain about this. Objectively, if the husband fails to recover the $260 000 in the O Pty Ltd litigation, he will have only himself to blame given the circumstances surrounding his investment in O Pty Ltd. On the other hand, whilst the wife will not have been disadvantaged, should the husband recover more than $260 000 in the O Pty Ltd litigation, unlikely though that appears on the evidence before this Court, he can retain it and will thus, in effect, have been vindicated in terms of the second and third investments in O Pty Ltd.

15. The Court accordingly concludes the contribution based entitlements of the parties to be 52.3 per cent to the husband and 47.7 per cent to the wife.

Section 75(2) factors

1. On behalf of the wife it was submitted by reference to s 75(2)(a) of the Act that the wife was 50 years of age and the husband was 52 years of age but that “the wife is not in good health and has some medical problems which are limiting both in her enjoyment of life and also to her ability to obtain/keep employment”. In response it was submitted that the wife “claims not to be in good health” and that “the husband contends that she is capable of gainful employment”.

2. To the extent that the husband asserted that the wife was capable of gainful employment, the claims made by him in relation to her involvement in and contribution to the parties’ business activities suggest that the husband himself regarded the wife’s capacity as limited.

3. Whilst the wife’s evidence in cross-examination was less than entirely convincing in relation to her efforts to obtain employment beyond that which she currently has, the evidence is insufficient to support a finding that the wife is capable of earning more than the $360 per week which she currently earns from casual employment.

4. The Court’s conclusions with respect to the wife’s capacity for employment are not dependent upon accepting that, by virtue of the care of the child B, the wife’s capacity for employment is limited. Just as the wife does not seek to elevate her claim by having the care of B, she cannot seek to do so by asserting that having such care limits her capacity to pursue employment.

5. As noted when considering the question of valuation of the Y Partners business, and adopting the higher valuation of the Y Partners business advanced by Ms WH, consistency requires that the consequences of such a hypothetical sale be taken into account, it being clear that only by a sale, and probable requirement of a non compete agreement between the husband and any hypothetical purchaser could that price be achieved.

6. Although it may seem an artificial exercise given that there is no suggestion that the husband will in fact sell the Y Partners business, and therefore will not cease to continue to derive the level of remuneration which he currently does through that vehicle, to value the business at the higher figure yet fail, when considering earning capacity, to have regard to the implications of such a theoretical sale would be to potentially unfairly disadvantage the husband. Had the Court opted for Ms EX’s valuation different considerations could apply.

7. The hypothetical sale scenario predicated by Ms WH means, on the sales data to which regard can safely be had, roughly a 50 per cent chance of the husband being re-engaged by the purchaser of such business. Realistically, at least presumably within a fairly extensive but undefined geographic limitation, the husband’s only prospect of employment as a finance agent would be with the hypothetical purchaser of the Y Partners business.

8. Whilst it is clear what the husband could expect to earn in that eventuality, approximately $200 000 per year, the fact that it may not materialise renders it unrealistic to suggest that the husband’s earning capacity is of that magnitude. It is superficially tempting to apply the apparent probability of gaining re-employment with the purchaser in the hypothetical sales scenario to the income, and suggesting, on balance, the capacity to earn $100 000 per annum, but that is not an option the Court feels comfortable in adopting.

9. It needs to be remembered that, if the husband in fact were to secure employment in the hypothetical sale situation, he would have approximately $3 270 674 to re-invest (subject to various unquantified revenue disbursements), whether that be in property development or in some other manner which the husband considered to be commercially advantageous.

10. Perhaps ironically, in that scenario the husband might be even better off than if he were to retain Y Partners and be regarded as having an earning capacity of $200 000 per annum plus the other benefits he currently receives. If, as the evidence suggests, there is a distinct chance that the husband were not to be employed by a hypothetical purchaser of the Y Partners business, what he might earn, his expertise over at least the past decade and a half being predominantly in the finance field is difficult to suggest.

11. The husband’s own evidence, albeit for a somewhat different purpose, suggests that he considers himself to have expertise in the field of property development. In the hypothetical sale scenario the husband would have a substantial capital sum to invest for that or other commercial premises.

12. Having regard to the uncertainties revealed by the evidence, the Court is comfortable in finding that the husband has a greater ability to earn than does the wife. The disparity in that regard cannot be realistically quantified, the most the Court can say being that the husband has a substantially greater capacity to earn than does the wife.

13. If the husband were not employed by a theoretical purchaser of the Y Partners business and were reliant solely on the income generated by passive investment of the sum of even $2 000 000 net of realisation expenses, at the prime interest rate currently prescribed by the Reserve Bank of Australia of 7.25 per cent he would generate $144 500 per annum, a considerably greater income than the evidence reveals to be realistically available to the wife from any identifiable field of endeavour.

14. The husband’s earning capacity is not clouded by health issues. The wife’s position is so clouded. The wife not only claims “not to be in good health” she is, as the unchallenged medical evidence adduced on her behalf establishes beyond reasonable doubt. Dr RT, the wife’s treating General Practitioner swore an affidavit in the proceedings to which she annexed a report prepared on 2 May 2007. As a reading of the transcript at the commencement of the trial would confirm, a number of parts of Dr RT’s report were struck out, essentially on the basis that they were hearsay which was not admissible pursuant to recognised exception to the hearsay rule. What remained of Dr RT’s report was nevertheless significant.

15. The wife has been a patient of Dr RT since 15 February 2000. Dr RT’s report was not a medico legal report, but rather a report from a treating medical practitioner. The report is thus potentially entitled to significant weight. Dr RT referred briefly to the events of 2000 which resulted on an operation on 20 March 2000 “to dissect the infiltrating carcinoma of the left breast and lymph nodes of the axilla” and on 22 March 2000 when a “total mastectomy was performed” by Dr ….

16. Dr RT recorded the wife’s subsequent chemotherapy which concluded on 4 October 2007. Dr RT referred to the wife’s family history of cancer, the accuracy of which has not been challenged. Dr RT recorded the wife’s symptoms since 2000, during which period the wife has been “extremely anxious about her health” and has “suffered lymphoedema of the left arm, hand and pain of the left neck right down her arm”. Dr RT has expressed the opinion that “because of the trauma that she endured, early menopause occurred, and extreme menopausal symptoms resulted”, which were “unable to be treated because of the history of breast cancer”. The wife has also suffered from “palpitations and insomnia and severe anxiety”.

17. Dr RT’s prognosis, based on the wife’s family history and early breast cancer was “not favourable, especially as she has a suspicious lesion in the right breast, which needs to be monitored”. Dr RT reported the wife now suffers from “anxiety and low self esteem” and is “depressed and suffers from insomnia”.

18. Dr RT stated that the wife’s ability to type was impeded and her physical endurance in general has been “considerably curtailed”. She referred to the wife’s need for further counselling, to a possibility of “metastatic spread of the cancer, or recurrence in the other breast”.

19. Dr RT concluded, in reliance upon the wife’s treatment history and its effects upon her and presenting symptoms that the wife’s capacity to work was “very restricted” and that the wife also needed “expensive vitamin food supplements to keep her health at its optimum level”. Further, as the wife has “decreased immunity due to the surgical removal of the lymph glands under her arm, she is more susceptible to infection and disease”.

20. Dr RT was not required for cross-examination on her report. Save to the extent that objections based on Dr RT’s qualifications and experience led to parts of her report being rejected, her qualifications to express the opinions to which reference has been made were sensibly not challenged. To the extent that Dr RT’s expert opinion evidence required factual underpinning, the evidence of the wife, which is not the subject of serious challenge in any relevant respect, provides such underpinning (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705).

21. Tendered by consent in support of the wife’s case was a report of Associate Professor UG a breast and endocrine surgeon, dated 16 February 2008. Unsurprisingly, Dr UG’s qualifications to give evidence in the terms of his report were not challenged, nor was objection taken to any aspect of his report.

22. In his report Dr UG referred to the fact that the wife’s mother died of ovarian cancer in 1990 at the age of 52 and that the wife’s sister “has only just recently been diagnosed with breast cancer” and was about to be referred for radiotherapy.

23. Dr UG examined the wife, and briefly recorded his clinical observations, his concern being that:-

    … her family history and if her mother is confirmed to have had an ovarian cancer then it would be highly likely that there is a breast ovarian cancer gene in the family and as such [the wife] should perhaps consider prophylactic oophorectomy even prophylactic mastectomy. Of paramount concern for her sister is that these discussions be had before she embarks on radiotherapy which would compromise any reconstructive procedures if she were to consider bilateral mastectomy.

24. Dr UG referred the wife and her sister to Professor KK at the Family History Clinic at Westmead Hospital.

25. The impact of her health on the wife’s ability to earn income and enjoy life is currently curtained to only a limited extent. The medical evidence to which reference has been made establishes that the wife’s ability to earn in the future most be regarded with caution.

26. The combination of disparity of earning ability, and the uncertainly as to how long that will continue in the case of the wife necessitate a substantial s 75(2) adjustment in the wife’s favour.

27. On behalf of the wife, it was submitted, prior to the husband giving evidence, that it was understood that the husband was cohabiting with another person but that “the circumstances are unknown to the wife”. The husband is undoubtedly cohabiting with another person. Whilst something is known of the circumstances of that cohabitation, what is known is very limited. The husband has chosen that this be so.

28. As noted earlier in these Reasons, in a case such as this, absent the husband’s new partner being possessed of very substantial means, the fact of that cohabitation and its circumstances would have the potential to impact only to a very limited extent on a valuation of s 75(2) factors. In those circumstances it is surprising, assuming that the husband knows as little about Ms F’s affairs as he would have the Court believe, that he did not ask Ms F to give evidence. There is no explanation for the failure of Ms F to give evidence in the proceedings, no suggestion that she was not available for any reason for that purpose and, as such, the Court is entitled to and does infer that her evidence would not have assisted the husband (see Jones v Dunkel (1959) 101 CLR 298).

29. Such evidence as there is does not suggest that Ms F is wealthy although she had the capacity, the husband says to lend him $40 000 for the O Pty Ltd litigation, to contribute $329 187 to the purchase of the current premises and to have an expectation with respect to an estate in the United States, the anticipated value of which justified the husband and Ms F travelling to the United States in order that the husband could advise Ms F on investment options with respect to such inheritance. Ms F apparently had a business which ceased in circumstances about which the husband gave no meaningful clues during the course of his evidence.

1. The husband financially fully supports Ms F, though she is apparently of an age where she would be able to work, but does not, for reasons which have not been explained. The husband pays the whole of the mortgage over the property which he occupies with Ms F, notwithstanding that he has a 1 per cent beneficial interest in that property. The husband did not suggest that making payments on behalf of Ms F in respect to her interest in the property was the subject of any agreement.

2. The husband’s lack of knowledge in relation to aspects of Ms F’s financial circumstances is difficult to accept, particularly from a person who takes a keen interest in money and claims expertise in various ways relating to its management. The Court is left to wonder why the husband chose not to “come clean” about Ms F.

3. Without suggesting that the husband’s case in relation to Ms F begins to assume the proportions of an Oriolo v Oriolo (1985) FLC 91-653, Weir v Weir (1993) FLC 92-338, or Black v Kellner (1982) FLC 92-287 scenario, the fact remains that the husband has failed to make a full and frank disclosure of the financial circumstances of his cohabitation with a woman with whom he has been cohabiting for some time and with whom he is a co-owner of real estate. By having elected to conduct his case as he has in relation to Ms F, the husband exposes himself to the risk that this Court will adjust in the wife’s favour pursuant to s 75(2)(m) and the Court proposes to do so, albeit to a modest extent only having regard to the probability, as learned counsel for the husband submitted, that the husband would have but a tenuous claim in relation to any property of Ms F.

4. As noted earlier, although unquantified, there would be tax implications for the husband were he to access the proceeds of a theoretical sale of the Y Partners business, given that those proceeds would be the property of a corporation and not the property of the husband personally. Whilst that is a matter properly able to be taken into account pursuant to s 75(2)(o) of the Act, how that should properly be reflected is difficult to suggest. The Court perceives there to be no simple or compelling explanation for the quantum of any adjustment by virtue of this factor. Necessarily, any adjustment is reflected quantitatively in the Court’s award. The absence of any quantification of the potential liability precludes the Court from doing so in anything but a broad and somewhat arbitrary way. Ultimately, the best the Court can do with respect to this topic is to take into account in a way which reduces the s 75(2) adjustment in her favour to which the wife would otherwise be entitled.

5. The matters to which reference has been made are the only matters which are capable of enlivening the discretion to make an adjustment under s 75(2).

6. It was submitted on behalf of the wife that a s 75(2) adjustment in her favour of 7.5 – 12.5 per cent would in the circumstances be warranted. In all the circumstances, an adjustment in favour of the wife of 4 per cent would be appropriate. This translates as an overall adjustment in her favour of 4 per cent of the asset pool, or the sum of approximately $400 000. The Court concludes that such an adjustment can be accommodated within the context of the s 75(2) factors to which reference has been made.

Conclusion

1. Having regard to the Court’s conclusions with respect to the contribution based entitlements of the parties and the s 75(2) adjustment appropriate to be made, it follows that the wife should be entitled to 51.7% per cent of the assets and the husband to 48.3% of such assets. A division of property in those proportions could only be ordered if the Court was satisfied that so doing was just and equitable. The Court is so satisfied. Why the Court is so satisfied has been explained earlier in these reasons.

2. It is necessary then to consider how such division should be implemented. It remains to consider two issues, the first being the manner in which the division of the assets of the parties should be achieved and, depending upon how that matter is resolved, whether, as noted early in these reasons for judgment, a further adjustment for likely realisation costs of some or all of those amounts (see paragraph 84) needs to be taken into account (see IABH & HRBH [2006] FamCA 379). As the Court has determined it, 51.7 per cent of the net asset pool ($4 855 927.00) is the sum of $2 510 514.26, or approximately $2 510 500.

3. Retention by the wife of the H property free of encumbrance, which has an agreed value of $1 050 000, her bank account styled “Superannuation Savings Account” with a balance of $65 196, her CBA Streamline account with a balance of $2526, her CBA Netbank Saver account worth $50 224, and her Coles Myer shares worth $6935, and was to receive the jointly held ASG School Fund worth $16 500, her motor vehicle worth $20 000, and her interest in the Ramon Family Superannuation Fund, agreed by Ms EX and Ms WH to be worth $348 658, the wife would receive property to the value of $1 560 039. She would thus be entitled to receive a further $950 000 from the husband in satisfaction of her overall entitlement of $2 510 500.

4. As the husband could only be expected to be able to pay such sum by increasing borrowings already exceeding $2 million, or realising one or more investment properties, it would be unrealistic and unjust to require the payment of the sum of $950 000 to the wife within a period of 90 days as frequently occurs. In the circumstances, payment within a period of 180 days would be fairer, provided that, after the expiration of 90 days, the husband pay interest on such sum to the wife at the prime rate from time to time prescribed by the Reserve Bank of Australia.

5. Upon the husband paying to the wife the sum of $950 000, the wife should transfer to the husband the whole of her right, title and interest in the investment properties, the husband should transfer his interest in the H property to the wife and secure in favour of the wife releases from personal covenants given by the wife to BankWest and Permanent Custodians pursuant to mortgages held by those entities. The mortgage over the H property would then also be discharged.

6. As noted earlier, by way of a splitting order the wife should receive from the Ramon Family Superannuation Fund her interest of $348 658, such entitlement necessarily being rolled into a complying superannuation fund to be created, or joined, by the wife. Rather than attempt to second-guess how the parties might achieve the outcome, the Court will direct counsel to settle an order so doing.

7. Although desirable, the Court does not perceive there to be any way of readily, and necessarily fairly, making orders to operate in the event of the husband failing to pay to the wife the sum of $950 000 to which the Court concludes that she is entitled. In the circumstances, unless counsel for the parties submit minutes of agreed orders with respect to enforcement, there would seem little alternative than to invite further submissions from counsel for the parties directed to that end.

I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  12 May 2008