RIVALLI & RIVALLI

[2017] FamCA 984

FAMILY COURT OF AUSTRALIA

RIVALLI & RIVALLI [2017] FamCA 984

FAMILY LAW – PROPERTY – Undefended final hearing – Where the husband has failed to file documents for trial – Where the husband has not made full and frank disclosure – Where there is property in the Middle East – Where there have been orders made in the Middle East as between the parties – Where the Middle East property is included in the matrimonial asset pool – Where the parties’ contributions to property are found to be equal – Where the husband has withdrawn funds from the parties’ joint bank account subsequent to separation – Where the husband’s failure to disclose warrants a small adjustment in favour of the wife – Where to facilitate this adjustment the wife should retain the former family home – Where the husband is to vacate the former family home – Orders made accordingly.     

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the husband has failed to file documents despite multiple directions to do so – Where the husband has failed to attend court on multiple occasions – Where the husband made no appearance on the first day of the hearing – Where it is appropriate for the matter to be dealt with on an undefended basis. 

Family Law Act 1975 (Cth) ss 75, 79

Property (Relationships) Act 1984 (NSW) s 20

Aleksovski v Aleksovski (1996) FLC 92-705
Bevan& Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688
Dickons & Dickons [2012] FamCAFC 154
Harris (1991) 104 FLR 458
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT: Ms Rivalli

RESPONDENT: Mr Rivalli

FILE NUMBER: PAC 3326 of 2014

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17 May & 4 August & 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Mclarens Lawyers

SELF REPRESENTED RESPONDENT: No appearance on 17 May 2017, appeared in person on 4 August and 15 September 2017

Orders

1. That the husband vacate the property situate at B Street, Suburb C by no later than 28 days from the date of these orders and that thereafter the husband is restrained from approaching or entering upon the said property.

2. That as and from 28 days from the date of these orders the wife have sole use and occupation of the property at B Street, Suburb C.

3. That the husband pay as they  fall due and payable council and water rates levied in respect to the property at B Street, Suburb C, mortgage payments as they fall due and payable in respect to the mortgage presently secured against the said property and maintain house property insurances until he vacates the said property.

4. That within three months from the date of these orders the wife pay to the husband $41,330.00 and in consideration of such payment the husband do all things necessary to transfer to the wife his interest in the property at B Street, Suburb C including signing the necessary memorandum of transfer and signing all documents so as to permit the wife to procure a discharge of the mortgage presently secured against the said property.

5. That concurrently with the payment provided for above the wife refinance the mortgage  presently secured against the property at B Street, Suburb C so as to release the husband from all or any liability arising from the said mortgage.

6. That in default of the wife paying to the husband the sum provided for above the parties shall do all things necessary to sell the home at B Street, Suburb C for the best price reasonably obtainable and the net proceeds of sale be apportioned between the husband and wife so as to effect an overall division of property as to 52.5 per cent to the wife and 47.5 per cent to the husband by reason of the asset pool otherwise determined in paragraph [55] of these reasons for judgment.

7. Liberty to apply as to implementation or enforcement of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rivalli & Rivalli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Rivalli

Applicant

And

Mr Rivalli

Respondent

REASONS FOR JUDGMENT

introduction

1. These are property proceedings commenced in the Federal Circuit Court of Australia by the Applicant wife, Ms Rivalli on 26 August 2015. Her former husband, Mr Rivalli, is the Respondent. The matter was transferred to this Court on 17 November 2015 due to the complex nature of the property dispute.

Context and procedural fairness

1. The parties married in 1989, separated in July 2013 and were granted a divorce on 28 August 2014.

2. The husband has remained in the parties’ home after separation with the wife living in rented accommodation.

3. After the wife commenced these proceedings and following transfer to this Court the matter came before a Registrar on 9 February 2016 who noted that there were outstanding issues as to property in the Middle East, outstanding disclosure and valuation issues.

4. On 15 April 2016 the husband informed the Registrar that he did not wish to obtain legal representation. Orders were made on that date by consent for a single expert valuation of the parties’ property at Suburb C, NSW.

5. Subsequently on 14 June 2016 proceedings were listed for judicial case management and trial directions were made estimating two days for trial. Trial directions were as follows:

   IT IS ORDERED THAT:

   Trial Directions

   1.Both parties file and serve any amended application or response and updated financial statement upon which they intend to rely by no later than Friday 27 July 2016.

   2.Neither party may rely on any affidavit filed previously in these proceedings without leave of the Court.

   3.Each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with rule 15.12 of the Family Law Rules 2004, by no later than Friday 26 August 2016.

   4.Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates, list other matters with priority or deal with the matter on an undefended basis.

Subpoenas

5.Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 7 days before the commencement of the trial.

Joint Trial Balance Sheet

6.The Applicant provide to the Respondent no later than 28 days before the commencement of trial a draft Joint Trial Balance Sheet setting out the asset pool contended for by the Applicant including assets, liabilities and financial resources and their asserted value and the Respondent within a further 7 days shall insert into that Balance Sheet the Respondent’s contentions as to the asset pool contended for by the Respondent including assets, liabilities and financial resources and their asserted value and return the Joint Trial Balance Sheet to the Applicant no later than 7 days before the commencement of the trial.

7.In relation to any issue or dispute in the completed Joint Trial Balance Sheet the parties are to footnote their reason for their contention.

8.The Applicant is to cause the completed Joint Trial Balance Sheet to be forwarded to the Court for filing by no later than 48 hours before the commencement of the trial.

Outline of Case: Property

9.Each party file and serve an Outline of Case document by no later than 7 days before the commencement of trial setting out:

a.A list of documents to be read in their case;

b.A brief summary of argument setting out:

i.The party’s contention as to the percentage contribution based entitlement asserted and the evidence relied on,

ii.The party’s contention as to any s 75(2) percentage adjustment sought, the factors in s 75(2) relied on and the evidence relied on;

c.A draft of the order sought to give effect to the overall entitlement asserted; and

d.A list of authorities to be relied upon.

Readiness Check

10.The proceedings be listed for a readiness check before a Registrar on Tuesday 13 September 2016 at 11:00am noting that in the event the matter is ready for the allocation of trial dates the Registrar will refer the matter to the List Clerk for allocation of trial dates and if not ready will list the matter before the Court for further directions.

Hearing Fee

11.In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

Liberty to Re-List

12.Leave is granted to the parties to re-list the matter on short notice by joint application to the Court in Chambers in appropriate circumstances.

IT IS NOTED THAT:

Witnesses

A.It is noted that the following witnesses are to be called on behalf of the parties:

a.Applicant Wife;

b.Respondent Husband; and

c.Single Expert valuer as to the [Suburb C] property.

Length of Hearing

B.It is noted that the parties anticipate that the final hearing will take approximately two days.

Jurisdiction

C.The Respondent Husband asserts that this Court has no jurisdiction by reason of concurrent proceedings in the Middle East and if so he will seek to agitate that issue by filing an application in a case supported by affidavit by no later than Friday 22 July 2016.

Valuation

D.The parties are in dispute in relation to the value of property in the Middle East and the Applicant Wife may make application to rely upon her expert witness in relation to the value of that property with such application to be made by way of application in a case supported by affidavit.

1. Proceedings were listed for compliance check before a Registrar on 13 September 2016. On that day there was no appearance by or on behalf of the husband before the Registrar and it was noted that the husband had not filed any evidence in accordance with the trial directions. Proceedings were adjourned to 10 October 2016 for judicial case management.

2. On 10 October 2016 the husband appeared in person and was ordered to file the balance of his evidence by 18 November 2016. It was noted that legal proceedings in the Middle East had been finalised and it was anticipated that evidence as to the Middle East property valuation and the outcome of those proceedings would be filed.

3. On 12 December 2016 the husband appeared in person. He had not complied with the orders of 10 October 2016 and was ordered to file his affidavit evidence by 24 February 2017. Proceedings were adjourned to 14 March 2017.

4. On 14 March 2017 there was no appearance by or on behalf of the husband. Various Applications in a Case filed by him were struck out and dismissed. The matter was adjourned for undefended hearing to 2.15 pm on 9 May 2017.

5. Subsequently the husband filed an Application in a Case on 3 May 2017 and that application and the primary proceedings were relisted for 17 May 2017.

6. On 17 May 2017 there was no appearance by or on behalf of the husband. The Court was satisfied that all appropriate attempts had been made to notify the husband and that he had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis.  The matter proceeded to undefended hearing on a part heard basis. The husband’s Application in a Case was struck out and dismissed.

7. The undefended hearing was adjourned part heard to 4 August 2017.

8. On 4 August 2017 the husband appeared in person. The matter was again adjourned part heard. Orders and notations were made as follows:

   1.The undefended proceedings as to property are adjourned part-heard to 2.15 pm on Friday, 15 September 2017.

   2.The applicant wife file and serve an affidavit by the expert real estate valuer by no later than Friday, 25 August 2017.

   3.The wife file and serve any further affidavit as to value of any asset the subject of these proceedings by no later than Friday, 25 August 2017.

   4.In the event that the Respondent seeks to cross-examine the wife’s real estate valuer, that he notify the wife’s solicitor in writing of that request by no later than Friday, 25 August 2017.

   THE COURT NOTES THAT

   5.The husband has copies of the two valuations the subject of this order.

9. On 15 September 2017 the husband again appeared in person. He had filed no trial material. He was afforded the opportunity of making somewhat lengthy submissions as to why the Court should not make orders on the wife’s application. Such submissions were prolix, irrelevant and unhelpful. It should be noted here that during the course of these proceedings the husband has been told by the Court that it would be in his interest to obtain legal representation. It was not that he was impecunious. It was his view that he could do a better job than any lawyer. He was afforded the opportunity to ask questions of the wife but declined.

10. The husband was permitted to rely on, by way of submission, a document entitled “Former Husband’s Outline of Case Document: Short History”: Exh “F”. The document is not evidence of the facts asserted therein save for admissible objective documents attached but in some respects it represents admissions against his interest.

11. Judgment was reserved.

The wife’s documents

1. The wife relied upon the following documents:

   a)Her Initiating Application filed 26 August 2015;

   b)Her affidavits filed 26 August 2016, 21 April 2017 and 3 August 2017;

   c)Her Financial Statement filed 21 April 2017;

   d)The affidavits of Mr D filed 18 November 2016, 20 April 2017 and 2 August 2017;

   e)The affidavit of Mr E filed 25 August 2017;

   f)The affidavit of Mr F filed 25 August 2017;

   g)The affidavit of Mr G filed 15 September 2017; and

   h)The Single Expert Report of Mr E.

The orders sought by the wife

1. The wife seeks orders in summary that:

   a)She be granted exclusive occupation of the property situate at B Street, Suburb C (“the Suburb C property”);

   b)The husband vacate the Suburb C property within 21 days of orders, that he be solely responsible for the mortgage repayments until he vacates the property with half of any arrears to be paid to the wife by him concurrently with the sale of the property;

   c)That he be restrained from damaging the property;

   d)That she be appointed trustee for sale of the Suburb C property;

   e)That balance proceeds of sale of the Suburb C property after sale fees and expenses and discharge of mortgage be paid to the wife;

   f)That the pool of assets overall, including superannuation, be divided 55 per cent to the wife and 45 per cent to the husband.

The evidence

1. The wife, now aged 59, and the husband now aged 64, were married in 1989. At the time of the marriage neither party had any assets of significance.

2. Subsequent to marriage in late 2002 the parties purchased a property at B Street, Suburb C (“the Suburb C property”) for $225,000.00 with their savings and a mortgage for the balance (Exh “F”). The parties moved into the property shortly after purchase. It was refinanced in early 2005 with a mortgage borrowing of $271,000.00 it appears to fund the proposed construction of a granny flat on the property. That and other improvements remain incomplete.

3. The parties remained living there until separation in 2013 when the wife vacated the property.

4. The Suburb C property is valued at $550,000.00 and is subject to a mortgage of $130,000.00.

5. The parties’ three adult children were born in 1990 (Mr H), 1993 (Mr J) and 1994 (Ms K).

6. After the birth of the parties’ third child the husband’s mother came to live with the parties in the Suburb C property. She remained living with the parties full time until 1999 and thereafter spent varying periods living in the Suburb C property.

7. The wife was the primary carer for the children and attended to their schooling, extra-curricular activities and other needs. The wife was the primary homemaker during the relationship, undertaking the great majority of household tasks. The wife acknowledges she received some limited assistance from the husband’s mother in completing the household chores.  

8. In 2001 the wife commenced work and  she continues to do so. She presently earns about $55,000.00 per annum. The money earnt by her from this date was banked in her Commonwealth Bank account …76.   

9. The husband has been in paid employment for the duration of the parties’ relationship and continues in that employment.

10. The wife used her income to pay for household expenses and bills. The husband would send various amounts overseas to his family and would waste the money from the parties’ joint account in buying and hoarding unnecessary items including fruit and vegetables that would eventually go rotten and building materials for home building projects such as an unfinished granny flat and sunroom extension on the Suburb C property.

11. In 2003 the husband was awarded damages totalling $96,322.00 for a motor accident compensation claim for an accident that occurred in 1998. The wife contends that she does not know what happened to this money although conceding that “some” of the money was used for household and living expenses.

12. The parties separated in July 2013 when the wife left the former family home and moved to rental accommodation. At this time all the children were over the age of 18 years.

13. In August 2015 the husband withdrew $53,978.61 from the parties’ joint bank account (National Australia Bank Account …87) being the entirety of the funds available in the account as at that date. The account was subsequently closed and the wife claims the husband has failed to account to her for these monies.  

14. Subsequently, in November 2015 the wife commenced these proceedings.

15. The wife after separation lent her eldest child $15,000.00 for legal fees in 2016 on the agreement that he would pay her that money back.  These funds came from her earnings.

Property in the Middle East

1. In 1998 the husband sent his brother money to purchase property in the Middle East. The funds, the wife asserts, represented monies received from an insurance claim following a theft at the home.

2. Subsequently, the husband informed the wife that the brother had bought for them a property, Property L for what was then about 24 million of the local currency.  The husband in his written “submissions” (Exh “F”) asserts that the price was $33,000AUD: Exh “F”. It was to be transferred to the husband’s name later. The property comprised three shops on a corner with two frontages and a large yard.

3. The wife visited the property in 2001 and observed that it comprises three shops, two of which were tenanted at that time. The wife is unaware of what was happening to the rent from the property.

4. In June 2015, two years after separation, the wife became aware that the husband’s brother had transferred Property L into the name of the husband. The transfer was on 4 February 2013.  

1. Subsequently, the wife commenced proceedings in the Middle East in January 2016 to restrain the husband from disposing of  Property L. It was necessary for the wife to also seek an order for her “marriage portion” to facilitate the court in the Middle East having jurisdiction to grant the injunction. The wife’s “marriage portion” is identified in the marriage certificate as “500 gold coins” payable to the wife on her demand. The wife asserts that such gold coins have a value of about $417.00AUD each.

2. In September 2016 the Legal and Public Court in the Middle East delivered judgment in the proceedings between the husband and wife in the Middle East. That judgment states that the marriage between the wife and husband is confirmed and as such the husband is to pay to the wife 500 full   Gold Coins and 199,800,000 of the local currency (about $7,400.00 AUD) in costs to the wife.

3. Property L is subject to an injunction restraining the husband from selling the property until he satisfies the orders of September 2016. 

4. A valuation of Property L was obtained in July 2017. The property was valued at 16,234,100,000.00 in the local currency. The published exchange rate with the Australian Dollar by the Central Bank as at 14 September 2017 was $1AUD = 26,787 local currency.

5. Accordingly, Property L has a value of about $606,044.00AUD.    

The wife’s “marriage portion”

1. The wife’s “marriage portion” was to be 500 gold coins as referred to above.

2. Those coins have been valued sight unseen by an expert valuer (Mr F) at $201,445.00 with each coin being valued at $402.89. Of necessity, the valuation is at best only an estimate based on the objective criteria of the coins as described in international catalogues.

3. The coins are as set out above subject to an order from the Court in the Middle East that the husband pay 500 Full gold coins to the wife.

Property

1. The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91.

2. Thus, the process ordinarily involves a staged process.

3. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. 

4. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. In particular, such a circumstance arises where both parties seek adjustive orders but are unable to agree as to same.

5. The circumstances of this matter as outlined above clearly demonstrated that it is appropriate and just and equitable for an order adjusting the property rights of the parties.

6. Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).

7. The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

8. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

9. The assets of the parties as best can be determined are:

   Assets

   Joint            Suburb C Property (as valued)  $     550,000.00

   Wife            CBA account …76 (W Fin Statt)  $        3,229.00

   Wife            St George account …61(W Fin Statt)                $           130.00

   Wife            Motor vehicle 1 (W Fin Statt)  $      10,400.00

   Wife            “Marriage Portion” payable to her  $     201,445.00

   Husband       ANZ account …94  $            NK

   Husband      ANZ account …09  $            NK

   Husband      ANZ account …15  $            NK

   Husband      Motor vehicle 2  $            NK

   Husband      IAG (264) Shares  $        1,671.00

   Husband      The Middle East property   $     606,044.00

   Wife            Household contents (W Fin Statt)   $        3,000.00

   Wife            Jewellery (W Fin Statt)   $        5,000.00

   Husband      First State Super (Exh D)  $      93,241.00

   Husband      Australian Super (Exh F)  $      64,460.00

   Wife            First State Super (W Fin Statt)  $      55,216.00

   Wife            Australian Super (W Fin Statt)  $      17,058.00

   $1,610,894.00

   Liabilities:

   Husband      “Marriage Portion” debt  $     201,445.00

   Joint            Mortgage Suburb C (W Fin Statt)  $     135,132.00

   $     336,577.00

10. The total net asset pool available for distribution minus the parties’ liabilities is, therefore, $1,274,317.00.

11. The wife, otherwise, contends (as does the husband in his submissions) for her outstanding income tax liability relating to a period post separation to be included.  The effect would be to have the other bear some liability. No basis is put forward for inclusion. The wife’s tax liability will be excluded.

Contributions

1. In Aleksovski v Aleksovski (1996) FLC 92-705, Baker and Rowlands JJ said at 83,437:

   It is therefore necessary that trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.  

   It really comes down to questions of weight. Whilst weight would and must be given to a contribution which a party makes shortly before the separation, less weight may be given to a contribution made by one of the parties to a marriage early in the cohabitation period of a long marriage, particularly in circumstances where the contribution has gone into the parties' assets or been used up in the payment of family expenses.

2. In the same case Kay J said at 83,443:

   What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.

3. In Dickons & Dickons [2012] FamCAFC 154 the Full Court said:

   23.We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made.  There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it.  (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors). 

   24.There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

4. In Harris (1991) 104 FLR 458 the Full Court said in assessing contributions:

   The task of the court in proceedings under section 79 [and thus s 90SM(4)] is not akin to an accounting exercise.

5. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to s 20 of the Property (Relationships) Act 1984 (NSW):

   The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.

6. Neither party had any significant assets prior to the commencement of the relationship.  Until 2001 the parties divided their roles as to the wife being primarily the homemaker and carer for the children and the husband being primarily the breadwinner.

7. The wife asserts her primary role in homemaker and parenting. Her assertion as to the husband’s waste is simply not quantified by appropriate evidence nor is it pressed.   

8. In 2001, in addition to caring for the children, who had become more independent due to having commenced schooling, the wife commenced paid employment.

9. The Suburb C property has a diminished value due to incomplete renovations and work that it appears have been under way since 2005. The wife does not assert waste in this regard.

10. The wife contends that the husband has had sole occupation of the Suburb C property for the four years since separation with only relatively modest mortgage encumbering the property. She has had to rent.   

11. As best as can be determined on the evidence the parties’ contributions overall should be regarded as equal, save for the assertion as to funds retained by the husband from the parties’ joint account and unaccounted for and considered later.  

75(2) factors relevant

1. The parties are 59 and 64 respectively and both appear to be in good health.

2. Both the husband and the wife clearly have the capacity for work as both are in paid employment at the present time although both are nearing the end of their working lives.

3. The income, property and resources of the parties are discussed above. Both parties do not contend any incapacity for continuing employment. They provide for themselves.

4. Both have superannuation in accumulation funds as set out above. The husband’s is more than double that of the wife.

5. The only other fact or circumstance as contended by the wife is the husband’s failure to make full and frank disclosure and his failure to account to the wife for various monies during and after the marriage. Such monies include the husband’s use of an indeterminate portion of the insurance monies paid to him in 2003 and his use of the money withdrawn from the parties’ joint NAB account in August 2015. 

6. In these circumstances, it must be assumed that the husband has had the sole benefit and use of recent significant funds being just over $53,000.00 withdrawn from the parties’ joint account in August 2015 and it is counted as a financial resource available to him. 

7. Given this failure to disclose on the part of the husband the wife seeks an adjustment in her favour of five per cent. Such adjustment creates a disparity of 10 per cent between the parties being about $127,000.00. Such a disparity is not called for. There will be a modest adjustment of 2.5 per cent in favour of the wife.

8. Accordingly, the wife is to receive 52.5 per cent of the asset pool, equating to $669,016.00 and the husband is to receive 47.5 per cent of the asset pool, equating to $605,301.00.          

9. The wife’s entitlement can be achieved by her receiving or retaining the following:

   Joint            Suburb C Property (as valued)  $     550,000.00

   Wife            CBA account …76 (W Fin Statt)  $        3,229.00

   Wife            St George account …61(W Fin Statt)                $           130.00

   Wife            Motor vehicle 1 (W Fin Statt)  $      10,400.00

   Wife            “Marriage Portion” payable to her  $     201,445.00

   Wife            Household contents (W Fin Statt)   $        3,000.00

   Wife            Jewellery (W Fin Statt)   $        5,000.00

   Wife            First State Super (W Fin Statt)  $      55,216.00

   Wife            Australian Super (W Fin Statt)  $      17,058.00

   $     845,478.00

   Less

   Joint            Mortgage Suburb C (W Fin Statt)  $     135,132.00

   $     710,346.00   

10. Thus to retain the home at Suburb C and avoid a sale she will need to pay to the husband $41,330.00 with him to then transfer the home to her. Otherwise, the parties will retain the other assets and resources to which they are presently entitled.

11. The husband will receive as best can be determined:

    Husband      Payment from the wife   $     42,601.00    

    Husband      Motor vehicle 2  $            NK

    Husband      IAG (264) Shares  $        1,671.00

    Husband      The Middle East property   $     606,044.00

    Husband      First State Super (Exh D)  $      93,241.00

    Husband      Australian Super (Exh F)  $      64,460.00

    $     808,017.00

    Less liability to the wife:   $     201,445.00

    $    606,572.00

12. Such orders are considered just and equitable in the circumstances of this matter.

13. To avoid conflict it is otherwise appropriate for the husband to vacate the home within a short period and for the wife to be given three months to organise her refinance to pay out the husband, in default the property is to be sold with the husband to receive a pro rata proportion of his present interest in the equity in the home created by these orders on sale.

14. Orders will be made accordingly.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 December 2017.

Associate: 

Date:  30 November 2017