ROMYEN & ROMYEN

[2019] FamCA 506

FAMILY COURT OF AUSTRALIA

ROMYEN & ROMYEN [2019] FamCA 506

FAMILY LAW – PROPERTY – Where the parties were married for almost 15 years – Where the wife made greater initial contributions and the husband made greater contributions after separation – Where overall the parties’ contributions to the pool of assets were found to be equal – Where the parties had various interests in properties overseas – Where the husband was likely to have potential for earning future income for a longer period than the wife – Where it was just and equitable to make a four per cent adjustment in favour of the wife – Orders made.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan (2013) FLC 93-545
Chorn & Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Romyen

RESPONDENT: Mr Romyen

FILE NUMBER: SYC 1112 of 2013

DATE DELIVERED: 2 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 3-6 July 2018

REPRESENTATION

FOR THE APPLICANT: Ms Romyen in person with the assistance of an interpreter

SOLICITOR FOR THE RESPONDENT: Alexandra Sullivan

Orders

1. The wife forthwith do all things and sign all documents necessary to transfer to the husband her interest in the following properties:

   (a)       The property known as 1 B Street, Suburb C, in the State of New South Wales, being the whole parcel of land comprised in Folio ….

   (b)       The property known as 10 F Street, Suburb D, in the State of New South Wales, being the whole of the land comprised in Folio ….

2. Upon the wife complying with Order (1) above, the husband forthwith do all things and sign all documents necessary to discharge the mortgage over the property known as 2 B Street, Suburb C, in the State of New South Wales, being the whole parcel of the land comprised in Folio … and transfer to the wife his interest in this property AND pay to the wife the sum of $47,787.

3. If the husband fails to pay the wife the above amount the husband shall forthwith place the said property at 1 B Street, Suburb C, in the State of New South Wales, on the market for sale, sell it at the best price reasonably able to be obtained and pay to the wife from the net proceeds of sale the sum of $47,787.

4. It is declared that the wife has no interest, proprietary or equitable or otherwise, in the property known as 1 G Street, Suburb H in the State of New South Wales, being the whole parcel of the land comprised in Folio … 

5. The husband be removed as director and relinquish any interest in the company J Pty Limited and the wife indemnify and keep the husband indemnified from any charges against the company, past, present or future.

6. It is declared that the husband has no proprietary or equitable interest in the company Q Pty Limited and he shall not be held liable for any charge against the company, past, present or future.

7. It is declared that the wife has no proprietary or equitable interest in the company K Pty Limited and she shall not be held liable for any charge against the company, past, present or future.

8. It is declared that the husband has no proprietary or equitable interest in the business name “CC Business” and that any charges against or in that business name remain with the wife.

9. It is declared that the wife has no proprietary or equitable interest in the business name “DD Business” and any charges against or in that business name remain with the husband.

10. It is declared that the wife has no further interest, proprietary or equitable, in the business known as DD Business operating at the premises at 10 F Street, Suburb D and the husband shall keep the wife indemnified from any charges on or against that business, past, present or future.

11. It is declared that the husband has no further interest, proprietary or equitable, in the following businesses:

    (a)       CC Business, L Street, Suburb C

    (b)       CC Business, cnr of E Street and O Street, Suburb C

    (c)       CC Business, M Street, Suburb N, and

    (d)       CC Business, 20 F Street, Suburb D.

    And the wife shall keep the husband indemnified from any charges on or against any of the above businesses, past, present or future.

12. Each party indemnifies and keeps indemnified the other party in respect of any personal debts and credit card debts in their respective names.

13. The wife shall indemnify the husband in respect of any joint debts, either personal or otherwise, and any joint credit card debts in the possession of the wife not declared at the time of the making of these orders.

14. Each party is declared to be the absolute owner to the exclusion of the other party of property held overseas by him or her in Country P and each party shall indemnify and keep indemnified the other party in respect of any personal debts, invoices and charges arising from or attached to their respective properties, past, present or future. 

15. Each party is declared to be the sole legal and beneficial owner of the following:

    (a)       Any cash in their possession and bank accounts in their sole name

    (b)       All furniture and personal effects in their possession, and

    (c)       Their respective superannuation entitlements.

16. It is declared that the husband has no further interest in the Vehicle 1 and the Vehicle 2.

17. In the event that either party fails to comply with these orders within 42 days of the making of these orders, with such failure continuing for 14 days, then the Registrar of the Family Court of Australia, pursuant to section 106A of the Family Law Act 1975 (Cth), shall execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary documents or instruments, or to do any act required to give effect to the above orders.

18. All exhibits be released.

19. Each party have leave to relist these proceedings in relation to the implementation 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 Romyen & Romyen 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 SYDNEY

FILE NUMBER: SYC 1112 of 2013

Ms Romyen

Applicant

And

Mr Romyen

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final property proceedings. 

2. Ms Romyen (“the wife”) was born in 1956 in City X, Country P and is currently 63 years of age. Mr Romyen (“the husband”) was born in1966 in City Z, Country P and is currently 53 years of age. The parties married in 1997 in Country P, separated on a final basis on 29 April 2012 and were divorced with effect in 2013.

Applications

1. The wife seeks the following orders:

   1.That the Husband pay to the wife a sum that represents the 65% of the net equity of the following properties:

   a.    10 F Street, Suburb D;

   b.    2 B Street, Suburb C;

   c.    1 G Street, Suburb H;

   d.    1 B Street, Suburb C.

   2.Immediately upon receipt of the said sum referred to in order 1 above together with interest thereon, if applicable, the wife shall do all such things and sign all such deeds, documents and instruments as may be necessary to transfer to the husband all her right title and interest in the following properties:

   a.    10 F Street, Suburb D;

   b.    2 B Street, Suburb C.

   3.In the event that the husband fails or neglects to pay to the wife the said sum referred to in order 1 above together with interest thereon as provided in Order 1 above within eight (8) weeks from the date of these Orders, then in that event, the parties shall forthwith thereafter join in the sale and do all such acts and things and shall execute all such deed, documents and instruments as may be necessary to list for sale and sell the property and CC Business as a going concern for a price and with an agent to be agreed upon between the parties, or in default of such agreement as to either agent or selling price for more than fourteen (14) days with an agent and at a price determined to be a fair market price by a valuer appointed by the President for the time being of Australian Property Institute Inc whose decision shall be final and binding upon the parties.

   4.That upon the completion of the sale of the above premises in accordance with Order 3 herein above the parties shall distribute the proceeds of sale, in the following order and priority:-

   a)    In discharge of any outstanding Council and Water Rates;

   b)   In payment of Real Estate Agent’s proper commission arising from the sale;

   c)    In payment of property legal costs and expenses arising from the sale;

   d)   In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuer’s fees if appropriate;

   e)    In payment of the balance remaining to the wife.

   5.The wife thereafter be declared to be the sole legal and beneficial owner of her right, title and interest in and to:-

   a)    All cash at banks and monies invested in the wife’s sole name;

   b)   All furniture and personal effects in the wife’s possession;

   c)    Any superannuation entitlements received by the wife and invested by or on her behalf;

   d)   All overseas interests and properties held in the wife’s name

   6.That the husband thereafter be declared to be the sole legal and beneficial owner of his right, title and interest in and to:-

   a)    All cash at banks and monies invested in the husband’s sole name;

   b)   All furniture and personal effects in the husband’s possession;

   c)    Any superannuation entitlements received by the husband and invested by him or on his behalf;

   d)   All of his interests in K Pty Limited;

   e)    All overseas interests and properties held in the husband’s name.

   7.That unless otherwise provided for herein, each party shall be forthwith declared entitled to retain and shall relinquish in favour of the other party any claim to any right title or interest in all items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.

   8.The party pursuant to whose own business or other dealings such liability arose shall indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against all incurred by the other party in respect thereof.

   9.In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the registrar of the Family Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person  who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

2. On the other hand, the husband seeks the following orders:

   1.The wife do all things necessary and sign all documents as requested to effect the transfer to the husband of all her interest and obligations including any mortgages, rights and title in the following properties:

   (a)The property known as 1 B Street, Suburb C in the state of New South Wales, being the whole parcel of land comprised in Folio …

   (b)The property known as 10 F Street, Suburb D, in the State of New South Wales, being the whole of the land comprised in Folio …

   2.Upon the wife complying with order 1. above, the husband do all things necessary and sign all documents to effect the discharge of the mortgage over this property and the transfer to the wife of all of his interest and obligations including any mortgages, rights and title in the property known as 2 B Street, Suburb C in the state of New South Wales, being the whole parcel of land comprised in Folio…

   3.The court declares that the wife has no interest, proprietary or equitable or otherwise in the property known as 1 G Street, Suburb H in the State of New South Wales, being the whole parcel of land comprised in Folio …

   4.The husband be removed as director and relinquish any interest in the company J Pty Limited and the wife indemnify and keep the husband indemnified of any charges against the company, past, present or future.

   5.The husband be declared to have no proprietary or equitable interest in the company Q Pty Limited and not be held liable for any charge against the company, past, present or future.

   6.The wife be declared to have no proprietary or equitable interest in the company and not be held liable for any charge against the company, present, past or future

   7.The husband be declared to have no proprietary or equitable interest in the business name “CC Business” and that any charges against or in that business name remain with the wife.

   8.The wife be declared to have no proprietary or equitable interest in the business name “DD Business” and any charges against or in that business name remain with the husband.

   9.That the wife be declared to have no further interest, proprietary or equitable in the husband’s business known as DD Business and operating at the premises at 10 F Street, and the husband keep the wife indemnified of any charges on or against that business, past present or future.

   10.That the husband be declared to have no further interest, proprietary or equitable in the following businesses:

   (a)CC Business, L Street, Suburb C.

   (b)CC Business, cnr of E Street and O Street, Suburb C

   (c)CC Business, M Street, Suburb N, and

   (d)CC Business, 20 F Street, Suburb D.

   And the wife keep the husband indemnified of any charges on or against any of the above businesses, past, present or future.

   11.Each party to indemnify and keep indemnified the other party in respect of any personal debts and credit card debts in their respective name.

   12.That the wife indemnify the husband of any joint debts,  either personal or otherwise and any joint credit card debts in the possession of the wife not declared at the time of the making of these orders.

   13.Each party be declared to be the absolute owner to the exclusion of the other party of property held overseas by him or her in Country P and each party indemnify and keep indemnified the other party in respect of any personal debts, invoices and charges arising out of or attached to their respective properties, past, present and future.

   14.Each party be the sole legal and beneficial owner of their respective superannuation.

   15.Each party hereafter be declared to be the sole legal and beneficial owner of the following property: -

   (a)Any cash in their possession and bank accounts in their sole name

   (b)All furniture and personal effects in their possession.

   16.The husband to be declared to have no further interest in the Vehicle 1 and the Vehicle 2.

   17.Failure of either party to comply with these orders within 28 days of the making of these orders, with such failure continuing for 14 days, then the registrar of the Family Court of Australia pursuant to Section 160A of the Family Law Act 1975, shall execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary documents or instruments, or to do any act required to give effect to the above orders.

Commencement of hearing

1. The wife was self-represented.  She had previously retained a solicitor, Ms S, and her solicitor had assisted her to prepare her Amended Initiating Application filed on 18 August 2017, her affidavit sworn on 19 February 2018, the affidavit of her brother, Mr V sworn on 22 February 2018 and her Financial Statement sworn on 19 February 2018.

2. Upon my asking the wife whether she was still seeking the orders set out in her Amended Initiating Application, initially she said that she was not.  But eventually the wife indicated that she was seeking such orders with an amendment to paragraph 1, the orders sought now being as set out above.

3. The wife did not have with her at court any of her own filed documents.  Accordingly, I arranged for her Amended Initiating Application and the said affidavits to be photocopied and gave her time to read these over with the assistance of a Country P interpreter, and her brother.  Nor did the wife have any of the husband’s documents in her possession.  Again, I arranged for copies of his Amended Response, his affidavit and his Financial Statement to be photocopied and the wife received such copies.  I am satisfied that the wife had been served with such documents yet she asserted that she had not seen the documents.  I do not believe her.

4. I then gave the wife time to read the documents.  By 2.30 pm on the first day she had not been able to complete her reading. I adjourned the hearing to the following morning at 10.00 am having asked the wife to ensure that when court reconvened she had completed her reading thereof. 

5. I then gave a brief outline of how I expected the hearing would be conducted. This was that the wife would go into the witness stand and be cross-examined, as would her brother, then the husband would go into the witness stand and she would have an opportunity to ask him questions.  I gave some brief explanation about how she might endeavour to approach this.  My overall impression of the wife on the first day of the hearing was that she was somewhat uncooperative.

Background

1. In 1986 the wife arrived in Australia. She had been an educator in Country P.

2. On 3 August 1988 a property in Country P was gifted to the wife and her brother by their father. The property is Title Deed No. …, BB Area, KK District, X Region.

3. On 2 November 1988 a property in Country P was purchased by the wife and her two brothers from their father. This property is Title Deed No. …, Parcel … OO Town, OO Area, KK District, X Region.

4. On 17 April 1995 the wife purchased a property in Country P for approximately. 30,000. This property is Title Deed No. …, Parcel …, OO Town, OO Area, NN District, X Region.

5. In the early to mid-1990s the wife’s brother, Mr V established in partnership with a friend a business called VV Business, which he managed. The wife assisted him by working at night. He sold the Business for $45,000 in approximately 1996.  He had also established another Business called YY Business in Suburb R in approximately 1994.  This closed after trading for approximately a year because the rent increased.

6. In 1997 the parties met through mutual friends.

7. In March 1997 the wife’s brother Mr V travelled to Country P and brought back cash in the following amounts:

   a)$24,450 on 6 March 1997; and

   b)$15,133 on 21 March 1997.

8. In early 1997 the husband was deported to Country P as he had overstayed his visa.

9. In May 1997 the husband received two parcels of land in Country P, Title Deeds No. … and No. … This land was given to the husband by his father. The land was not transferred to the husband until August 1997.

10. The wife travelled to Country P and the parties married there in 1997. Two weeks after the marriage the wife returned to Australia. However the husband was unable to return to Australia at this time as he was waiting for a visa. While the husband was in Country P he worked on his sister’s farm and saved about ... 200,000.

11. On 30 September 1997 the wife purchased 1 G Street, Suburb H (“the Suburb H property”). She had previously obtained a loan approval on 4 June 1997. The purchase price of $168,000 was provided for as follows:

    a)A loan from the Commonwealth Bank of Australia in the sum of $124,000; and

    b)The wife’s savings – including money from her father.

1. In 1998 the husband travelled to Australia three times on a tourist visa to be with the wife.

2. In 1999 the husband’s visa was approved and he moved to Australia. The wife paid for his airfare. When the husband arrived in Australia the parties lived in rented accommodation for a period because the wife’s brother and his family were occupying the wife’s Suburb H property.  They subsequently moved into the Suburb H property.

3. In September 1999 the parties established a business known as “CC Business”, assisted by the wife’s brother Mr V who had experience operating similar businesses. On 30 September 1999 the parties signed the lease for a premises at 10 F Street, Suburb D. The CC Business commenced operating from this premises. The capital used to purchase the business came from the wife’s savings, some money that Mr V brought to Australia in March 1997 and a loan from MM Finance for $67,000.

4. In late 2000 the wife began working at the CC Business on a full-time basis managing the business.  The parties employed a professional.

5. In late 2000 or early 2001, the parties and the wife’s brother Mr V opened up another “CC Business” at L Street, Suburb C (“the L Street Business”). The wife and Mr V paid RR Pty Ltd the amount of $25,000 to transfer the sub-lease of the property. The wife and Mr V each paid for half of these costs.  They also provided a bank guarantee in the amount of $19,552.  In April 2002 the L Street Business was renovated. Mr V paid the funds for renovation works.

6. The CC Business was particularly profitable. By early 2003 the mortgage on the Suburb H property was paid off and the parties had savings of approximately $160,000.

7. In March or April 2003 the parties purchased as joint tenants 1 B Street, Suburb C (“1 B Street”) for the sum of $432,000. They borrowed the sum of $346,000 by way of mortgage with the balance coming from savings.

8. In April 2003 the wife purchased 2 G Street, Suburb I (“the Suburb I property”) for the sum of $310,000. The amount of $149,000 was borrowed to fund the purchase by way of a mortgage and the property was leased.

9. In around June 2003 the parties purchased 2 B Street, Suburb C (“2 B Street”) for $424,000. The entire purchase price was borrowed on mortgage. The parties moved into 2 B Street and leased out B Street.

10. On 1 November 2005 the parties purchased vacant land in Country P with the registration number … No. … in the name of the husband’s sister, Ms ZZ. They paid the equivalent of AUD 140,000 towards the discharge of her mortgage.

11. In 2006 the wife established a company called “J Pty Ltd” with the wife and the husband as directors. The company was to manage all “CC Businesses”. The wife owned 80 per cent and the husband owned 20 per cent of the shares. This was done for tax purposes as the Suburb I property was owned in the wife’s sole name.

12. In November 2006 the wife leased another premises at M Street, Suburb N (“the Suburb N business”). The rent on the premises was approximately $7,800 per month. The business was fitted out using the same model as the CC Business. The wife said that Mr V spent approximately $100,000 refurbishing the business although this is not clear to me. This business has been mainly operated by Mr V.

13. In April 2007 the Suburb I property was sold for $360,000. The wife received the sum of approximately $358,814 from the sale proceeds.

14. On 4 May 2007 the wife purchased property in Country P for ... 300,000. This property is Title Deed No. … Parcel …, OO Town, JJ Area, NN District, City X.

15. On 2 November 2007 the parties purchased vacant land in City Z, Country P, Title Deeds No. … and No. … registered in the name of the husband’s sister, Ms ZZ. The parties paid $10,000. The husband said this was purchased in his sister’s name because neither he nor the wife were present in Country P at the time of purchase.

16. On 12 January 2008 the parties built a community building costing $131,579 in honour of the husband’s mother in the husband’s mother’s village.

17. In March or April 2008 the parties purchased the premises of the DD business at 10 F Street, Suburb D for approximately $1,265,000. The purchase was as tenants in common with the wife owning 80 per cent and the husband owning 20 per cent. The parties took out a mortgage over the property for $500,000 to Y Bank and paid the balance using savings.

18. On 1 May 2008 the parties paid $13,158 for a building serving as a waiting room inside a medical clinic compound in City Z, Country P on a site in the husband’s village.

19. On 8 December 2008 the parties purchased the business “LL Business” at 20 F Street, Suburb D and changed the name to “CC Business. The parties paid $150,000 to the lessees to purchase the business and executed a new lease with the vendors.

20. On 1 May 2009 the wife leased the premises at O Street/E Street, Suburb C to start a business on a five year lease (“the E Street Business”).

21. On 4 March 2010 the husband’s sister transferred her interest in the property in Country P with the Title Deeds No. … and No. … to the husband.

22. On 10 May 2010 the wife formed another company with her niece called “Q Pty Ltd”. The E Street Business was operated through this company.

23. On 9 July 2010 the wife gave a donation for the construction of a religious symbol and for the establishment of an education fund in her home City X in Country P.

24. In early 2012 the husband borrowed $35,000 from his sister and her husband.   

25. On 29 April 2012 the parties separated on a final basis. Following an argument the wife assaulted the husband. The wife was charged with assault occasioning actual bodily harm and an Interim Apprehended Violence Order (“ADVO”) was made against the wife. The wife later pleaded guilty to the offence and a final ADVO was made.

26. Following the incident on 29 April 2012 the husband went to live at B Street. Following the separation, Mr V and his family moved into Unit 2 B Street with the wife.

27. The next day the husband went to work at the DD business. The conditions of the ADVO restrained the wife from attending the husband’s place of work. Since that time the husband has operated the DD business without involvement by the wife.

28. On 6 May 2012 the wife paid for a wedding reception venue in City Z, Country P for $48,421. This was built in the husband’s home town. The wife withdrew the parties’ funds in their joint account in Country P to finance this project. 

29. On 15 May 2012 the wife transferred the Suburb H property to Mr V for $1. She said that this reflected the very significant contribution he had made to the businesses over the many years. I shall refer to this matter again below.

30. A month after separation the husband saw a “for sale” sign on the front of the DD Business at Suburb D, with the mobile telephone numbers of the wife and Mr V thereon.

31. On 6 June 2012 the wife assigned the lease for the premises of the E Street business to Mr V.

32. On 8 June 2012 the wife assigned the lease for the Suburb N business to Mr V’s wife, Ms V and her niece, Ms PP.

33. In June 2012 Mr V and his wife took over the lease for the L Business. In June 2012 the lessor Mr SS informed the wife that she owed $89,000 in unpaid outgoings.  

34. On 4 July 2012 the husband registered the company K Pty Limited with himself as the sole director. He relinquished his directorship of J Pty Limited and registered a new business name “DD Business”. Since this time he has paid all the bills for the DD business and operated it through this company.

35. In September 2012 the husband became aware that the wife was not making any mortgage repayments for 2 B Street. The husband paid the arrears directly into the mortgage account. From 18 December 2012 the husband began meeting these payments.

36. On 8 January 2013 the wife received a letter from solicitors demanding payment for 29 unpaid invoices to U Company from the 2012 year amounting to almost $20,000.

37. On 30 April 2013 the husband saw in the Country P media an advertisement for the sale of the Suburb N business and Suburb D business.

38. On 1 June 2013 Mr V obtained a mortgage in the amount of $400,000 secured over the Suburb H property.

39. On 9 June 2013 the husband began receiving money transfers from his sister and her husband. From 9 June 2013 to 12 May 2015 the husband received a total of $59,000. He said that he had to borrow this money because the wife was not contributing to payment of the mortgage and particularly to fund payment of the strata levies.

40. On 12 June 2013 orders were made by this Court by consent that the husband, the wife and Mr V were restrained from selling, transferring, assigning or further encumbering the businesses and specified real estate.

41. On 7 November 2013 Mr V paid the wife the sum of $265,000 from his mortgage account. The wife made a number of immediate payments by cheque to creditors which largely depleted these funds. I shall refer again to this below.

42. In 2013 the parties were divorced.

43. In December 2013 the wife’s niece, Ms T took over the lease for the CC Business at 20 F Street.

44. On 11 March 2015 orders were made that the husband be afforded the opportunity to purchase the Suburb H property from Mr V for $590,000. Orders were also made for the sale of the E Street business and it was noted in the orders that there was an intention to cause the disposal of the Suburb N business. The order made on 12 June 2013 restraining the parties from selling, transferring, assigning or further encumbering the Suburb N business, the E Street business and the Suburb H property was discharged. The husband subsequently purchased the Suburb H property from Mr V for $590,000. The husband borrowed $470,000 from Westpac and $120,000 from his sister’s husband to make the purchase. The husband said that he purchased this property to ensure that it did not go into the hands of a third party.

45. On 5 March 2018 the matter was listed for hearing over four days.

Credit

The wife

1. Notwithstanding that I had informed the wife that it was important for her to listen carefully to the questions and provide a responsive answer, there were many occasions when she did not do this. She gave me the impression that she was using the opportunity provided by the question to tell me things which presumably she thought might assist her case.

2. The wife was the party who undertook all the financial management for the parties during the marriage, including most of the financial management of the businesses. The husband appeared to have been happy to leave this to her. In these circumstances I would have expected the wife to be able to assist the Court to arrive at a detailed understanding of relevant financial history, significant transactions and the movement of money generally during the marriage, including money sent to Country P. But with respect, it has been the husband’s solicitor who has done most of the hard work involved in assisting the Court with much of the relevant financial information now before the Court, limited as it is.

3. I must say I do not regard the wife as being forthcoming. On some occasions she did make a concession. I had a feeling that the wife was holding back considerable financial information which could have been of much assistance.

4. Overall I have reservations about the wife’s evidence. Where this conflicts with that of the husband, generally I would prefer that of the husband.

The husband

1. The husband was more responsive than the wife. He made concessions. But he left me with the impression that he was lacking a detailed knowledge of many aspects of relevant financial matters.

The wife’s brother

1. The wife’s brother appeared to be quite partisan and very supportive of the wife’s case. I have reservations about the reliability of his evidence.

The Applicable Law

1. Subsection 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.

2. Subsection 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. Subsection 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).

4. The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) 247 CLR 108. In this case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:

   35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.

5. The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

6. The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.

7. The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.

8. And the High Court majority went on to say (at page 122) as follows:

   41.…  The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

Balance Sheet

1. At the commencement of the hearing Ms Sullivan for the husband made available a Balance Sheet of assets, liabilities and superannuation which is as follows:

Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	H	10 F Street, Suburb D		940,000
2	H	Unit 1 B Street, Suburb C		1,125,000
3	W	Unit 2 B Street, Suburb C		1,275,000
4	H	Unit 1 G Street,  Suburb H		775,000
5	W	J Pty Ltd		1,5000
6	W	Q Pty Ltd		1.5000
7	H	K Pty Limited		1,5000
8	H	CC Business, Suburb D		e150,000
9	H&W	Total Property in Australia		4,283,000
10	H	Property in Country P, Title Deed No: …22 (362,775 ...)		14,938
11	H	Property in Country P, Title Deed No: …23 (398,825 ...)		16,422
12	H	Property in Country P Title Deed No: …44 (74,700 ...)		3,076
13	H	Property in Country P Title Deed No: …41 (103,600 ...)		4,266
14	W	Property in Country P, City X Title Deed No: …33   (2,904,200 ...)		119,586
15	W	House Identification No: …1-4 Country P		e240,000
16	W	Property in Country P, City X Title Deed No: …26 (3,668,125 ...)		151,042
17	W	Property in Country P, City X, Title Deed No: …75 (455,625 ...)		18,761
18	W	Property in Country P, City X  title Deed No: …82 (876,250 ...)		36,081
19	W	Property in Country P, City X Title Deed No:…15 (539,375)		22,210
20	W	Property in Country P, City X Title Deed No: …03 (585,000 ...)		24,088
21	W	Property in Country P, City X Title Deed No: …62(600,000 ...)		24,706
22	W	Property in Country P, City X Title Deed No:…24 (100,000 ...)		4,117
Total		Property in Country P		451,300
TOTAL		PROPERTY IN COUNTRY P AND AUSTRALIA		4,734,300
ADDBACKS
23	W	Bank account in Country P.     (1,540,155 ...)		63,418
24	W	Term Deposit Commonwealth Bank		21,000
25	W	1 G Street, Suburb H		590,000
26	W	CC Business, M Street, Suburb N		e60,000
27	W	CC Business, E Street & Bourke St Suburb C		e60,000
28	W	CC Business, 20 F Street, Suburb D		e100,000
29	W	CC Business, L Street, Suburb C		e150,000
30	W	Vehicle 1		e10,000
31	W	Vehicle 2		e30,000
32	W	Rates paid by H on unit occupied by W		1,837
33	W	Strata Levies paid by H on unit occupied by W		30,448
34	W	Portion fee for joint valuations paid by H		3,290
35	W	Legal fees		200,000
36	H	Legal fees		80,000
Total		ADD BACKS		1,399,993
LIABILITIES
37	H + W	Mortgage to NAB over 1 B Street, Suburb C		222,122
38	H +W	Mortgage to NAB over 2 B Street, Suburb C		199,063
39	W	Credit card loans		51,073
40	H	Credit card loans		7,900
41	H	Mortgage to Westpac over 1 G Street Suburb H		472,000
42	H	Personal loan from sister and brother-in-law		204,000
Total		1,156,158
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
43	W	Super Fund 1	superannuation	40,000
44	H	Super Fund 2	superannuation	17,291
Total		57,291

1. A number of issues emerged as follows. 

(a)    Assets

Items 1 to 4 –10 F Street, Suburb D; 1 B Street, Suburb C; 2 B Street, Suburb C and 1 G Street, Suburb H

1. The valuations of the four items of real estate were prepared by the single expert, Mr UU.  There was no disagreement by the parties about the values.  These were items 1 to 4 of the Balance Sheet.

Item 5 – J Pty Ltd

1. Item 5, J Pty Ltd, was the wife’s company but it has been deregistered.  It was submitted on behalf of the husband that it would have a nominal value but I am unpersuaded and regard this at nil value.

Item 6 – Q Pty Ltd

1. Similarly in my view this company has a nil value.

Item 7 – K Pty Limited

1. It was agreed that this would form part of the value of the DD Business (10 F Street, Suburb D).

Item 8 – CC Business, 20 F Street, Suburb D

1. The parties agreed that this has a value of $150,000.

Items 10 -14 and 16-22

1. The values were adjusted to take account of changes in exchange rates and were agreed.

Item 15

1. By agreement this was deleted.

(b)    Addbacks

Item 23 – Bank account in Country P

1. At the time the parties separated the wife had a bank account in Country P with a credit balance of ... 154,155.42. The day after separation, namely 30 April 2012, the wife withdrew the entire proceeds of this account. She has never accounted to the husband for any of this money. In these circumstances, in my view, this money should be added back to the pool of assets. Its current value is $62,739.

Item 24 – Term deposit Commonwealth Bank

1. After separation the wife transferred these funds to her account.  The husband has had no use of these funds.  Accordingly, the money will be added back.

Item 25 – 1 G Street, Suburb H

1. This property was transferred by the wife to her brother for the consideration of $1 very shortly after separation.  The wife said that she needed to make provision for her “little brother”. She said that he did all he could to establish the businesses for 13 years and has virtually nothing to show for this. She said that he also put his own money into the businesses. The wife said that for this reason she transferred to him the only asset in her name namely, 1 G Street, Suburb H for $1 on 15 May 2012.

2. As indicated above, the wife’s brother mortgaged this property for $400,000. From this money he then loaned the wife $265,000 which, as I have said, she used to pay out debts. Pursuant to orders made on 11 March 2015 the husband purchased this property for $590,000. He borrowed $470,000 on an interest only loan from Westpac and $120,000 by personal loan from his sister and brother in law.

3. I propose to deal with this somewhat difficult situation in the following manner.

4. The wife in effect gave the property to Mr V. It is not clear what its value was at that time. Mr V mortgaged it for $400,000 then advanced the wife $265,000 which she spent discharging debts. This left Mr V with $135,000 in hand ($400,000 minus $265,000 is $135,000).

5. Then Mr V received $590,000 by selling the property to the husband. At this point, Mr V had $590,000 plus the $135,000 balance from his loan of $400,000 which was a total of $725,000 ($590,000 plus $135,000 is $725,000). But he owed the $400,000 to the mortgagee which left him with $325,000 net ($725,000 minus $400,000 is $325,000).

6. In my view, this amount ($325,000) should be added back to the property pool as against the wife because the wife never consulted the husband about her proposal to give this component of their matrimonial property to her brother. This represented a $325,000 benefit to Mr V.

7. The husband put in issue whether the Court would accept the wife’s assertions that she used the $265,000 to discharge debts properly incurred. It was submitted on behalf of the husband that the wife has not provided full details and documents to support the alleged liabilities.

8. But I accept the wife’s contentions in this regard. She said that the background to her financial difficulties was that at about the time of separation the husband excluded her from the DD business which was by far the most profitable of the businesses. The wife said that the revenue from this business subsidised two of the other businesses. The wife said that she could not meet the mortgage payments. She said that the husband refused to apply revenue from the DD business to pay bills of the two unprofitable businesses and that he refused to pay invoices directed to her company J Pty Limited even those incurred by the DD business so she was left with the debt. The wife became very depressed and consulted clinicians. She said that she has struggled financially and emotionally since separation.

9. As indicated above, in January 2013 the wife received a letter of demand from solicitors acting for U Company, a supplier to the businesses, seeking about $20,000 in unpaid invoices. A copy was annexed to the wife’s affidavit. The wife also annexed to her affidavit a statement of her Commonwealth Bank account which showed her indebtedness of $245,595.41 at the time she received the advance of $265,000 from Mr V.

10. In all these circumstances, on this point I accept the wife’s contentions and consider it more probable than not that the wife used the $265,000 advance to discharge debts properly incurred.

Item 26 – CC Business, M Street, Suburb N

1. There was no agreement about the value of this business and no evidence of value in proper form. Accordingly it will be valued at nil.

Item 27 – CC Business, E Street and O Street, Suburb C

1. The wife’s brother sold this for $50,000.  The wife said that these proceeds were spent on debt.  I accept this.

Item 28 - CC Business, 20 F Street, Suburb D

1. The wife had agreed during her cross-examination that this business had a value of $150,000. But at the time of final submissions she said that its value would be less namely $100,000. I accept her admission that the value would be $100,000.

2. I understand the wife to contend that this is her niece’s business but I do not accept this. I regard the wife in reality to be the owner of this business. As I have said, her affairs have been enmeshed with those of her brother Mr V and members of his family. The wife could have put documents in evidence to support her contention and she has not.

Item 29 - CC Business, L Street, Suburb C

1. The wife said that this business has been closed. I accept that it has a nil value. The wife also said that the parties owe Mr SS, the lessor, the sum of $90,000 for outstanding bills. But as Ms Sullivan submitted, the relevant bills were addressed to Mr SS not the parties. Accordingly I reject this claim by the wife.

Item 30 – Vehicle 1

1. The wife sold this to her brother for $2,000. There was agreement about this value.

Item 31 – Vehicle 2

1. The wife has sold this motor vehicle and the parties agree it had a value of $20,000.

Items 32 and 33 - Rates and strata levies paid by husband on unit occupied by wife

1. In my view these monies spent should not be added back. Although the husband has had to pay the mortgages and outgoings he has had the benefit of operating the most lucrative of the parties’ businesses and has had the benefit of the revenue therefrom.

Item 34 - Wife’s portion of fee for joint valuations paid by husband

1. I accept that this should be added back because the husband has paid the entire fee.

Items 35 and 36 - legal fees

1. In accordance with the principles enunciated in Chorn & Hopkins (2004) FLC 93-204 all legal fees paid should be added back.

Item 39 - Wife’s credit card liabilities

1. These came to a total of $51,073 as set out in the wife’s financial statement. During submissions, the wife asserted that these were $90,000 but she provided no evidence to support this. Accordingly, I shall include them in the Balance Sheet at $51,073.

Item 40 - Husband’s credit card liabilities

1. I am satisfied that these are $10,222.

Item 42 - Husband’s personal loan from his sister and brother in law- $214,000

1. The husband annexed to his affidavit money transfer statements to support his claim that a substantial amount of money had been loaned to him. I accept this.

Item 43 - Wife’s Super Fund 1 $40,000

1. The wife said during cross-examination that she had spent the entirety of this superannuation. I accept this.

Assets and Liabilities

1. The parties’ assets and liabilities are as follows:

   ASSETS

$
1.         Joint – 1 B Street, Suburb C	1,125,000
2.         Joint – 2 B Street, Suburb C	1,275,000
3.         Husband (2/10 tenant-in-common) and Wife (8/10 tenant-in-common) – 10 F Street, Suburb D	940,000
4.         Husband – 1 G Street, Suburb H	775,000
5.         Husband – DD Business, 10 F Street, Suburb D and K Pty Limited	150,000
6.         Husband – Property in Country P, Title Deed No: …22 (362,775 ...)	14,777
7.         Husband – Property in Country P, Title Deed No: …23 (398,825 ...)	16,246
8.         Husband – Property in Country P, Title Deed No: …44 (74,700 ...)	3,042
9.         Husband – Property in Country P, Title Deed No: …41 (103,600 ...)	4,220
10.      Husband – Legal fees paid (add back)	80,000
11.      Husband – Superannuation	17,291
12.      Wife – CC Business, 20 F Street, Suburb D	100,000
13.      Wife – Property in Country P, City X Title Deed No: …33 (2,904,200 ...)	118,305
14.      Wife – Property in Country P, City X Title Deed No: … (3,668,125 ...)	49,808
15.      Wife – Property in Country P, City X, Title Deed No: …26 (455,625 ...)	18,563
16.      Wife – Property in Country P, City X Title Deed No: …75 (876,250 ...)	35,700
17.      Wife – Property in Country P, City X Title Deed No: …15 (539,375)	21,975
18.      Wife – Property in Country P, City X title Deed No: …03 (585,000 ...)	23,830
19.      Wife – Property in Country P, City X  Title Deed No: …62 (600,000 ...)	24,441
20.      Wife – Property in Country P, City X  Title Deed No: …24 (100,000 ...)	4,073
21.      Wife - Bank account in Country P (add back)	62,739
22.      Wife - Term Deposit Commonwealth Bank (add back)	21,261
23.      Wife – Gift to Mr V of 1 G Street, Suburb H (add back)	325,000
24.      Wife – Vehicle 1	2,000
25.      Wife – Vehicle 2	20,000
26.      Wife - Portion of fees for joint valuations (add back)	3,290
27.      Wife – Legal fees paid (add back)	200,000
_____________
$5,431,561

1. The liabilities are as follows:-

   LIABILITIES

$
1.         Joint – Mortgage to National Australia Bank on 1 B Street, Suburb C	221,593
2.         Joint – Mortgage to National Australia Bank on 2 B Street, Suburb C	198,415
3.         Wife – Credit card liabilities	51,073
4.         Husband – Credit card liabilities	10,222
5.         Husband – Mortgage to Westpac on  1 G Street, Suburb H	472,000
6.         Husband – Personal loan from sister and brother in law	214,000
_____________
$1,167,303
NET PROPERTY	$4,264,258

Sub-Section 79(2)

1. Sub-section 79(2) of the Act provides:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:

   In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. 

3. In the present case, the parties were married for almost 15 years. They acquired businesses and property interests for their mutual benefit over the years. If the Court did not make orders to alter their interests in property, the various findings resolving the issues referred to above would not be reflected in orders and in my view, this would be quite unfair.

4. In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

1. Both parties have worked very hard.

2. At the time of marriage the wife was working as a cleaner.

3. Initially, when the parties established the DD business the wife retained her paid employment.  But from approximately late 2000 the wife resigned from her employment and commenced as the full-time manager of the business.

4. The husband, after the parties married and prior to coming to Australia in January 1999, worked on his sister’s farm in Country P.  I am not persuaded that he had any money of his own at the time that he arrived in Australia.  I accept that the wife paid for his visa.

5. In January 1999 the husband commenced working in a business called “W Business” part-time (10.00 am – 3.00 pm Monday to Friday) and, after some weeks, at another business six days per week (5.00 pm – 11.00 pm). He also worked part time as a cleaner.

6. Upon commencement of the DD business the husband worked as an assistant there.

7. The wife purchased the Suburb H property at a time subsequent to the parties’ marriage but prior to the husband’s arrival in Australia in January 1999.  I am satisfied that the wife arranged the finance for this purchase.

8. As indicated above, the wife’s brother brought money to Australia which he and the wife said came from their father.  An amount in excess of $44,000 would have been required to pay the difference between the wife’s $124,000 loan from the Commonwealth Bank and the purchase price.  Clearly the required funds were paid from the wife’s resources.  The husband’s evidence was to the effect that the wife’s father loaned her the money and that the parties subsequently repaid him.  The wife denied this. She said that money was subsequently paid by the husband to her father but that this was payment of a dowry.

9. Doing the best I can in very difficult circumstances, I prefer the husband’s evidence about this to that of the wife because I consider his evidence generally to be likely to be more reliable than that of the wife.  Accordingly, I accept that money made available to the wife by her father was largely repaid.

10. Both parties have made significant direct financial contributions through income from their work and particularly from the revenue produced by the various businesses and rent from properties.

11. It is clear that the wife was very much in charge of the financial aspects of the business and the marriage.  She asserts that she made the major financial contributions.  Yet the husband has worked hard in the various businesses over the years of marriage.

12. The wife’s financial circumstances both during the marriage and following separation have been enmeshed with those of her brother Mr V.  In the absence of observing income tax returns and other relevant financial documents for the parties and for the wife’s brother over the years, it is impossible to arrive at any detailed picture of the extent to which Mr V has contributed to the profitability of the businesses and property of the parties, and the extent of this enmeshment.

13. The wife’s brother assisted in establishing the DD business including the provision of some funds, the amount of which I am unable to be confident about.  He has also operated the Suburb N and L Street businesses and been involved in the operation of the other businesses.

14. It is also clear that substantial sums of money have flowed one way or another from the parties’ resources in Australia to Country P.  But in the absence of details and relevant documents it is impossible to be confident about the extent of this and to what extent such funds are represented in assets in Country P.

15. There is no doubt that income from the businesses has enabled the parties to acquire the valuable properties and other assets identified in the Balance Sheet acquired during the marriage.

16. As I have said, the wife’s brother has made contributions to the businesses and what appear to have been some direct financial contributions.  These are considered to have been contributions on behalf of the wife.  But he has also received benefits in return.  These have included benefiting from revenue from the businesses and being able to reside with his family initially in the Suburb H property.  They also lived above the L Street business and ultimately with the wife at 2 B Street.  As I have said, his financial affairs have been enmeshed with those of the parties and it is impossible to be clear about the overall position in relation to this.  In all these circumstances, taking account of benefits received from the parties by the wife’s brother, it is more probable than not that his contributions have been balanced by the benefits he and his family have received from the parties.

17. The position in relation to the Country P properties is not entirely clear to me. The evidence about the acquisition of some of the properties was unsatisfactory. At the time of marriage the wife had interests in three properties in Country P. All properties were in the City X.

18. The property identified by Title Deed No. …33 was given to the wife and her brother Mr V by their father in 1988. They still own it and their brother resides there. There is a large home built on the land.

19. The property identified by Title Deed No…65 was sold to the wife and her two brothers by their father in November 1988. There is a house on the land which the wife said was built by Mr V. The wife’s cousin and her family live there.

20. The property identified by Title Deed No. …15 was purchased by the wife in April 1995, which was prior to marriage.

21. It was asserted on behalf of the husband that the properties identified by Title Deeds No. …65 and No. …15 were acquired after marriage. But the wife deposed in her affidavit as above. I accept the wife’s evidence about this because there was no evidence before the Court which would demonstrate otherwise.

22. On the basis of the current agreed valuations of Country P properties, the wife’s interests in these three properties have a current total value of $190,088.

23. On the other hand, a couple of months after the husband’s father transferred to the husband two parcels of land in Country P identified by the Title Deeds No. …22 and No. …23. These properties have a current total value of $31,023.

24. Subsequently, the parties acquired other properties in Country P, the details and values of which are set out in the balance sheet above.

25. It was submitted on behalf of the husband that the Court should assess the contributions of the parties as having been equal during the course of the marriage but since separation the husband having made significantly greater contributions than the wife.  This was said to have been on the basis that he was paying the entirety of the mortgages and outgoings.

26. There is some force in this submission. But it ignores the fact that the wife’s initial contributions were greater than those of the husband, particularly having regard to Country P properties. Those Country P properties of the wife at the time of marriage had a much greater value than those of the husband. 

27. It is the case that since separation the husband has paid the mortgages and outgoings on properties. But he has had the benefit of operating the DD business at 10 F Street since separation.  This has been the most lucrative business and he has had the benefit of the revenue produced. The wife has not had access to any of this revenue.

28. On the other hand, the wife submitted that so much greater were her overall contributions than those of the husband that the result should be that she receive 65% of the property.  She said “I did it all myself” and was not prepared to give the husband much credit at all for the building up of the parties’ assets.

29. Doing the best I can in very difficult circumstances, in my view, the wife has made a greater level of initial contributions and the husband has made a greater level of contributions since separation. In my view their contributions overall have been equal.

Sub-section 75(2) matters

1. The wife is 63 years of age. She has had some problems with depression. She has operated the parties’ businesses and their business affairs very effectively throughout the parties’ marriage. The extent to which she is currently involved in operating businesses is not clear to me, although I am satisfied that she has been involved in the operation of the CC business at 20 F Street. I expect that once the stress of these proceedings is behind the wife she would be able to manage one or more businesses as she has previously.

2. What the wife’s actual income might be is unclear to me. This is estimated to be $100 per week in her Financial Statement and the Financial Statement shows that the wife has estimated that $100 per week is paid by a relative for her expenses. The wife relies on her brother Mr V, his wife and their children and her expenses are clearly subsidised by them. They represent a financial source for the wife.

3. The quantum of commitments necessary to support herself is also unclear. In her Financial Statement the wife estimates this at $905 per week. This appears high to me in circumstances where she is living with relatives. It is clear, however, that the wife has been unable to fund her living costs without depleting her superannuation and going into considerable debt. As indicated above, the wife said that she had credit card debts of approximately $90,000 and I accept that these are $51,073 as set out in her Financial Statement.

1. The husband is 53 years of age and in good health. He has been involved in the operation of the parties’ businesses throughout their marriage. As indicated above, since separation he has managed the DD business at 10 F Street successfully without any involvement by the wife. On all present indications, he will be able to continue to earn a good living from this or a similar occupation well into the future. The husband’s income is $2,027 per week. His commitments come to $1,803 per week,

2. The wife is approximately ten years older than the husband. In my view, other things being equal, he is more likely than not to have more income-earning years available to him than the wife.

3. In all the circumstances and particularly in view of the differences in the parties’ ages and the likely effect of this on their future income, some adjustment of property and superannuation in favour of the wife would be required in order to arrive at a just and equitable order.

4. I accept that in the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 the Full Court of this Court indicated trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:

   There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.  

5. In my view the appropriate adjustment is four per cent in favour of the wife. This would be a differential of eight per cent, which would be $341,141.

Conclusion and fourth step

1. The wife is to have 54 per cent of the property and superannuation available for division between the parties. This is property and superannuation with a value of $2,302,699 (54 per cent of $4,264,258 is $2,302,699).

2. Amongst the orders sought by the husband is an order that he transfer his interest in the property at 2 B Street, Suburb C to the wife and that he discharge the mortgage thereon. The wife seeks an order that she transfer this property to the husband. But, as indicated above, the wife has been living in this property with her brother and his family since separation. I propose therefore to make the order sought by the husband in this regard.

3. On this basis and on the basis that the orders would include orders requiring the wife to transfer to the husband her interest in the properties at 1 B Street, Suburb C (and for the husband to discharge the mortgage) and at 10 F Street, Suburb D the wife would have the following property:

$
1.         2 B Street, Suburb C	1,275,000
2.         CC Business, 20 F Street, Suburb D	100,000
3.         Properties in Country P – Title Deeds No. …33, …65, …75, …82, …15, …03, …62 and …24	296,695
4.         Bank account in Country P (add back)	62,739
5.         Commonwealth Bank Term Deposit (add back)	21,261
6.         Gift to Mr V of 1 G Street, Suburb H (add back)	325,000
7.         Vehicle 1.	2,000
8.         Vehicle 2	20,000
9.         Portion of joint valuation fees (add back)	3,290
10.      Legal fees paid (add back)	200,000
_________
$2,305,985

1. But she has the following liabilities:

1.         Credit card liabilities $51,073

1. She would therefore have net property of $2,254,912 ($2,305,985 minus $51,073 is $2,254,912). To achieve property with a value of $2,302,699 the wife would require a payment from the husband of $47,787 ($2,302,699 minus 2,254,912 is $47,787).

2. On the other hand the husband is to have 46 per cent of the available property and superannuation. This is property and superannuation with a value of $1,961,559 (46 per cent of $4,264,258 is $1,961,559).

3. If the husband was to receive transfer of the wife’s one-half interest in the property at 1 B Street, Suburb C and her eight-tenths interest in the property at 10 F Street, Suburb D, and he was also to transfer his one-half interest in the property at 2 B Street, Suburb C to the wife and pay the outstanding mortgage he would have the following property and superannuation:

$
1.         1 B Street, Suburb C	1,125,000
2.         10 F Street, Suburb D	940,000
3.         1 G Street, Suburb H	775,000
4.         DD Business, 10 F Street, Suburb D and K Pty Limited	150,000
5.         Properties in Country P – Title Deeds No. …23, …23, …44 and …41	38,285
6.         Legal fees paid (add back)	80,000
7.         Superannuation	17,291
__________
$3,125,576

1. But the husband would have the following liabilities:

$
1.         Mortgage on 1 B Street, Suburb C	221,593
2.         Mortgage on 2 B Street, Suburb C	198,415
3.         Credit card liabilities	10,222
4.         Mortgage on 1 G Street, Suburb H	472,000
5.         Personal loan from sister and brother	214,000
_______
$1,116,230

1. Accordingly, the husband would have net property and superannuation with a value of $2,009,346 ($3,125,576 minus $1,116,230 is $2,009,346).

2. If the husband was to pay to the wife the sum of $47,787 this would leave him with net property and superannuation with a value of $1,961,559 ($2,009,346 minus $47,787 equals $1,961,559).

3. On the basis of the orders I propose, each of the husband and the wife will have a residence and each will have a business as well as the items of real estate which have been identified above. The husband would have a lot of debt. But if he has to sell property to discharge or manage debt, in all the circumstances, in my view this would be reasonable. If the wife has difficulty managing her credit card liabilities she could sell a property and discharge or reduce these.

4. In my view, in all the circumstances, the orders as proposed will be just and equitable.

I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 2 August 2019.

Associate: 

Date:  2 August 2019