Ross and Audley
[2011] FMCAfam 280
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROSS & AUDLEY | [2011] FMCAfam 280 |
| FAMILY LAW – Property – significant matrimonial asset pool of over $3,000,000.00 – 97 per cent of asset pool received by way of an inheritance from the wife’s mother – husband argued he made substantial contributions throughout the marriage including daily care for the wife’s late mother for the four years preceding her death – ordered 75:25 division of the realisable assets in the wife’s favour. |
| Family Law Act 1975, ss.75, 79 |
| Gosper & Gosper (1987) FLC 91-818 Bonnici & Bonnici (1992) FLC 92-272 Rickaby & Rickaby (1995) FLC 92-642 Farmer & Bramley (2000) FLC 93-060 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 |
| Applicant: | MS ROSS |
| Respondent: | MR AUDLEY |
| File Number: | MLC 11053 of 2009 |
| Judgment of: | Bender FM |
| Hearing date: | 28 March 2011 |
| Date of Last Submission: | 28 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pavone |
| Solicitors for the Applicant: | Coleman Lawyers |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | Frid & Associates |
ORDERS
The wife do all things necessary to forthwith place [Property C] (“[Property C]”) on the market for sale and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly to pay all costs, commissions and expenses of the sale;
(b)secondly to the husband an amount that represents 25 per cent of the parties’ realisable assets (the parties’ realisable assets found to consist of the net proceeds of sale of [Property C], the wife’s half interest in [Property T] valued at $1,150,000.00 and the proceeds of the sale of shares [retained by the wife] of $180,000.00); and
(c)thirdly the balance to the wife.
Pending completion of the sale:
(a)the husband have the sole right to occupy [Property C] and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of [Property C] as they fall due;
(b)the parties hold their respective interests in [Property C] upon trust pursuant to these orders; and
(c)neither party encumber [Property C] without the consent in writing of the other party.
The wife be liable for and indemnify the husband against all payments in respect of any Capital Gains Tax arising from the sale of the wife’s shares.
The husband shall retain, to the exclusion of the wife, the entirety of his superannuation entitlements.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in [Property C] to be divided between the parties by agreement);
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Ross & Audley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11053 of 2009
| MS ROSS |
Applicant
And
| MR AUDLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, there is a single question to be answered by the Court when determining the adjustment of property between the parties after a marriage of over 20 years and four children.
That question is:
In circumstances where 97 per cent of the property pool is property the wife inherited from her late mother, what is a just and equitable division of the property between the parties?
The wife is seeking orders that there be a division of the parties’ real assets, valued at $3,030,000.00, such that she receives 80 per cent of the assets and the husband receives 20 per cent of those assets. In relation to the husband’s superannuation entitlements of $120,000.00, the wife seeks orders that the husband retain all of his superannuation and that there be an adjustment such that he pays her $40,000.00 from his share of the realisable assets.
The husband is seeking orders that the parties’ property be divided equally between them.
Background
The wife was born [in] 1958 and is 52 years of age. She is engaged in home duties. She has remarried.
The husband was born on [in] 1953 and is aged 57 years. He is employed as a Trades Assistant earning $60,000.00 per annum. He has not re-partnered.
The parties commenced cohabitation in 1986 and married [in] 1987. The separated [in] 2008. The parties have four children [W] born [in] 1987 (“[W]”), [X] born [in] 1990 (“[X]”), [Y] born [in] 1992 (“[Y]”) and [Z] born [in] 1995 (“[Z]”).
The wife has an eldest son [V] born [in] 1979 (“[V]”). [V] lived with the parties from the commencement of cohabitation and was, at all times, raised by the parties as their son. [V]’s natural father provided no financial support for his care and spent no time with him.
The parties separated [in] 2008 when the wife left the former matrimonial home and moved in with her now husband Mr R. The four children remained living with the husband in the former matrimonial home. It is only in very recent times that the children have spent any time with the wife when, at the husband’s instigation, she joined them for family meals.
When the parties commenced cohabitation they moved into a property at [Property P]. These premises were owned by the wife’s mother and she allowed the parties to live in the premises rent free.
When the parties commenced cohabitation, the husband owned a block of land at [S]. It was sold shortly after the parties married for $15,000.00. The sale proceeds were utilised for the benefit of the family.
After [W] was born in 1987 the parties moved into [Property C] (“[Property C]”). This property was owned by the wife’s mother. The parties were not required to pay rental.
In December 2000 the residence at [Property C] was demolished. The wife’s mother, having sold a property at [Property L], utilised the proceeds of sale to pay for a six bedroom home to be built at [Property C]. It was intended the wife’s mother would live with the parties on completion of the new home.
Whilst the [Property C] property was being rebuilt the parties and the children lived in another property owned by the wife’s mother at [Property T]. They were not required to pay rent. The wife’s mother moved into a nursing home.
In December 2001 the parties moved back into [Property C]. As a result of her poor health, the wife’s mother did not move into [Property C] with the parties. She remained in the nursing home she had been living in whilst [Property C] was being rebuilt.
Whilst the wife’s mother was in the nursing home, the wife attended her during the day to assist in her care and the husband attended each evening to feed her and settle her for the night.
[In] 2004 the wife’s mother passed away. Probate on her Will was granted to the wife as Executrix [in] March 2005.
Under the terms of her mother’s Will the wife inherited [Property C], a half interest with her brother in [Property T], a considerable share portfolio and antique furnishings.
The wife suffers from serious mental health issues. She first suffered post natal depression after [V]’s birth resulting in three and a half month’s hospitalisation. In [omitted] 1984 the wife had a further breakdown requiring hospitalisation. In [omitted] 2007 the wife was admitted to[a] Clinic as an involuntary patient.
In 2010 the wife suffered a prolonged gradual breakdown which resulted in her being admitted [to] Hospital as an involuntary patient in July 2010 where she was held until September 2010, during which time she received 20 sessions of electroconvulsive therapy.
The wife continues to follow the treatment prescribed by her treating mental health professionals.
The wife’s brother also has issues with his mental health. During the marriage and after separation the husband has supported the wife’s brother both emotionally and by assisting him in the maintenance of his home.
The wife married her now husband Mr R [in] 2010. The wife gave Mr R her Power of Attorney. [In] 2010, upon application by the wife’s son [V], an Administrative Order was made by the Victorian Civil and Administrative Tribunal (“VCAT”), VCAT having found the wife unable to make reasonable judgments about her estate. The order remains in place, though it is the wife’s evidence the order will be rescinded shortly.
After separation the wife sold all of the shares left by her mother and utilised the total proceeds of their sale, being $180,000.00, for the benefit of herself and Mr R.
It is the wife’s evidence there will be Capital Gains Tax (“CGT”) payable on the sale of the shares in the sum of $13,259.00.
The parties agreed that the proceeds of the sale of the shares is to be included in the pool of assets and that the wife has had the benefit of those proceeds.
The parties were not in agreement as to who should be responsible for the payment of any CGT payable in respect of the sale of the shares.
The wife’s mother also bequeathed to her a sizeable collection of antiques, including furniture, artwork and other collectables, many of which remain in [Property C]. The parties have agreed that the wife will retain those items and the husband shall otherwise retain the contents of [Property C].
Each of the parties have a motor vehicle of comparable value and have agreed they will retain their respective motor vehicles.
The Issues
The parties’ evidence as to their financial history was consistent as between each other and the detailed background set out in this judgment is, I believe, an accurate reflection of that history.
The issues I identified as between the parties in relation to the division of property between them are as follows:
a)Should any CGT payable on the sale of the shares by the wife post-separation be paid from the asset pool prior to division or be paid by the wife from her share of the pool?
b)What are the respective contributions of the parties and in particular what adjustment, if any, should be made in the wife’s favour because of the substantial inheritance from her late mother?
c)How should the husband’s superannuation entitlements be divided between the parties where neither seeks that a superannuation splitting order be made?
The legislation
Section 79 of the Family Law Act1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act 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.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
Save for the question as to the payment of any CGT on the sale of the share portfolio by the wife post-separation, the parties are agreed as to what constitutes their asset pool.
In relation to the payment of the CGT, I accept the husband’s evidence that the sale of the shares occurred without his knowledge or consent and that he would have preferred that the share portfolio remain intact.
The decision to sell the shares was that of the wife (or her now husband) and she used the net sale proceeds of same for the benefit of herself and Mr R. In these circumstances I am of the view that any CGT payable on those shares should be the wife’s responsibility.
Accordingly, I find the matrimonial asset pool to be divided between the parties to be as follows:
[Property C] $1,700,000.00 Half interest in [Property T] $1,150,000.00 Proceeds of sale of the shares (retained by the wife) $180,000.00 Total $3,030,000.00 Husband’s Superannuation $120,259.00 TOTAL: $3,150,259.00
Contributions
The detailed financial history of the parties is set out in detail earlier in this judgment.
It is common ground that the parties’ realisable assets are as a result of the wife’s inheritance from her late mother’s estate in 2004.
It is also common ground that prior to the death of the wife’s mother, the parties lived in real estate that was owned by the wife’s mother rent free.
It was submitted on behalf of the wife that the contributions are so overwhelmingly in the wife’s favour that there should be a division of the realisable assets such that she receive 80 per cent of same and the husband receive 20 per cent of same.
In the matter of Gosper & Gosper (1987) FLC 91-818, His Honour Fogarty J when looking at the manner in which the Court was to treat the gift of two blocks of land to the parties by the wife’s parents held at 76,168:
“Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly… on behalf of” the spouse relative.
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage.
It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made “on behalf of” one spouse.”
It was submitted on behalf of the wife that the inheritance to the wife was because she was her mother’s daughter and that in those circumstances it was not open to the husband to argue that the inheritance was meant to benefit both he and the wife or the family as a whole.
Reference was made to the wife’s mother’s Will, the terms of which named the beneficiaries of her Estate to be the wife and the wife’s brother, and the residual beneficiaries any grandchildren.
Counsel for the wife referred the Court to the matter of Bonnici & Bonnici (1992) FLC 92-272. In this case the issue before the Court was how it should treat an inheritance received by the husband some six months prior to the parties’ separation. At 79,020, the Full Court held as follows:
“The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances.”
However the Full Court then stated:
“Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property.”
It was argued by Counsel for the wife that the inheritance received by her was relatively late in the parties’ relationship and thus the husband could not be seen to have significantly contributed to the assets inherited by the wife that form the bulk of the property pool.
Whilst the wife’s inheritance was received in the second half of the marriage, it was not “very late” in the relationship, being some four years prior to separation. In addition, the parties lived in [Property C] for the entirety of the marriage and were responsible for its upkeep and maintenance. The parties were also responsible for the maintenance and upkeep of [Property T].
Further the husband’s care of the wife’s mother, especially in her last four years in the nursing home is acknowledged by the wife.
In all those circumstances, whilst there is a very live issue as to the weight to be given to the wife’s inheritance in the circumstances of this case, it cannot be argued the husband made little or no contribution in respect to the inherited assets.
It was further argued on behalf of the wife that the provision of
rent-free accommodation to the parties by the wife’s mother from the commencement of cohabitation until her death was also a contribution made for and on behalf of the wife.
The Court was referred to the matter of Rickaby & Rickaby (1995) FLC 92-642 where Lindenmayer J at 82,488 noted as follows:
“The parties lived rent free with the wife’s parents from marriage in 1971 until they moved into their North Haven property in 1978, a period of about seven years. In the circumstances of this case, I regard that as a significant contribution to the welfare of the family on behalf of the wife.”
Reference was also made by the wife to the four years of dividend payments received by the parties between 2004 and 2008 from the shares left to her by her mother, which were also utilised for the benefit of the family.
The wife readily conceded that during the 20 year relationship the husband also contributed to the family’s financial circumstances as well as to the welfare of the family as a whole. The wife conceded that the husband was in full-time employment for the entirety of the marriage, albeit that his income level was in the modest range.
She also conceded that the husband was a good father and that particularly when she was ill and hospitalised as a result of her mental health issues, he properly cared for the children absent any support from her during that time.
The wife also conceded that the husband at all times treated her eldest son [V] as a member of the family and supported him for the entirety of the relationship.
It was submitted on behalf of the wife that it is for these reasons the court must consider that the contributions of the wife greatly outweigh the contributions of the husband such that an adjustment in her favour of 30 per cent is appropriate.
It was submitted on behalf of the husband that whilst the wife’s inheritance is a very significant factor in this case, it should be looked at in the context of the totality of the contributions that the parties made throughout the lengthy 22 years of their relationship and that when done so, the parties’ contributions should be seen as equal.
Counsel for the husband referred the Court to the Full Court decision of Farmer & Bramley (2000) FLC 93-060 where the Full Court held at paragraph 65 as follows:
“The court is asked to determine what is an appropriate and just and equitable order, bearing in mind not only the contributions made directly to the existing assets, but contributions made generally during the course of the relationship between the parties both to the acquisition, conservation and improvement of assets (which may or may not still exist) and to the welfare of the family in the role of homemaker and parent.”
Further at paragraph 68 the Full Court held:
“…the Court’s task is to evaluate all of the contributions from the time of the commencement of the parties’ relationship until the time of the hearing and give such weight to such contributions as the Court thinks is appropriate in the circumstances.”
It was argued on behalf of the husband that the Court should not make a finding that the wife’s contributions exceed those of the husband just because of her greater monetary contribution. It was argued that the Court should look at the contributions of the parties as a whole, and in particular the following factors:
·The husband’s care of the wife’s child from a previous relationship;
·The significant health issues of the wife;
·The care provided by the husband to the wife’s mother, particularly in the last four years of her life when he attended upon her every evening to assist in her care;
·The husband’s full-time employment throughout the entirety of the relationship, together with his additional burden of being homemaker and parent, particularly during the wife’s ill health;
·The very long relationship;
·The husband’s contribution to the maintenance of the various assets of the parties;
·The husband’s care of the wife’s brother which continues to this day, including assisting him in the maintenance of his property; and
·The husband’s contribution in the care of the parties’ children post-separation without assistance from the wife.
The husband, in his evidence, conceded that save for those periods when the wife’s mental health issues overwhelmed her, she was a good mother and wife and was the principal homemaker and parent to their children.
It was argued on behalf of the husband that it was the family’s expectation they would inherit the properties from the wife’s mother and as such they made decisions in relation to the manner in which they dealt with their financial resources. They chose to make no investments in real estate, but rather used their financial resources to put their children through private education.
It was further argued on behalf of the husband that whilst the wife’s mother’s Will clearly named the wife and her brother as the beneficiaries, the wife’s mother’s expectation was that the inheritance would be for the benefit of the entirety of the wife’s family, including himself and the children.
It was therefore argued on behalf of the husband that when considering the totality of the contributions of the parties for the entirety of their 22 year relationship, a finding that their contributions were equal would result in a just and equitable outcome.
There is no doubt that in their 22 year relationship both the husband and wife contributed to the benefit of their family, both as income earner, homemaker and parent.
Because of the wife’s mental health issues at times during the relationship, there were periods where the husband bore an additional burden in the care of the children whilst maintaining full-time employment.
The husband also cared for the wife’s mother, particularly in her last four years when it is agreed that he would attend at her nursing home to assist in feeding her and getting her to bed every evening. The husband also cared for and continues to care for the wife’s brother.
Since separation, the husband has been responsible for the care of the parties’ children absent any assistance from the wife.
The reality is however that the entirety of the parties’ realisable assets are as a direct result of an inheritance received by the wife from her mother. Whilst the husband argued the wife’s mother intended to benefit the family as a whole, I am of the view that the wife inherited from her mother because she was her mother’s daughter. Such contribution is recognised in law as a contribution made for and on behalf of the wife to the asset pool and to the welfare of the family.
In these circumstances and when weighing the respective contributions of the parties in their 22 year relationship, I am satisfied that there should be an adjustment in the wife’s favour of 25 per cent.
Section 75(2) factors
At the commencement of the hearing of this matter, the Court was advised that the parties had agreed that there should be no adjustment one as against the other in relation to section 75(2) factors.
It was agreed that the wife’s ongoing health issues greatly impact on her earning capacity such that in all likelihood her capacity to obtain gainful employment in the short, medium and even long-term is very limited.
At the same time, it was agreed that the husband had the ongoing responsibility for the care of the parties’ 15 year old daughter and that he will be doing so absent any ongoing financial support from the wife.
I am satisfied that the agreed position of the parties is in fact an accurate one in law and that there should be no adjustment as between the parties in relation to section 75(2) factors.
Superannuation
It was the wife’s proposal that in relation to the husband’s superannuation entitlement, he should retain the entirety of his superannuation and that from the amount to be received by him from the parties’ realisable assets, he pay to the wife an amount of $40,000.00, representing her share in his superannuation entitlement.
Counsel for the husband indicated that her client was flexible as to whether there should be a superannuation splitting order, but noted that neither party had sought such an order in the Applications before the court.
Counsel for the husband made no submissions as to what adjustment, if any, should be made in relation to superannuation on a percentage or other basis.
In the circumstances of this case, given the relatively small amount of the husband’s superannuation entitlements and the adjustment made in the wife’s favour, I am of the view that the husband should retain the entirety of his superannuation entitlements.
Conclusion
As noted previously in this judgment, the parties are in agreement as to the division of chattels between themselves, such that the wife shall retain the antiques, including furnishings, paintings and the like, that were left to her by her mother and the husband shall retain the majority of the chattels in the former matrimonial home.
The parties are also in agreement that the wife will retain her interest in the [Property T] and that the [Property C] property is to be sold and the net sale proceeds of same are to be divided in such a way that reflects the percentage division determined by this Court as a just and equitable outcome of the matter.
Having determined that there is to be an adjustment against the realisable assets in the wife’s favour of 25 per cent on the basis of her vastly greater contributions, the net result is that from the proceeds of sale of [Property C], accepting that it sells at a figure approximate to the agreed value, the husband would receive an amount of $757,500.00, together with the entirety of his superannuation entitlements and the wife will retain her interest in the [Property T], the benefit of the proceeds of sale of the shares and the balance of proceeds of the sale of [Property C]. The wife will bear sole responsibility for payment of any CGT on the sale of the shares.
I am satisfied that such an outcome is just and equitable in all the circumstances of this case and intend to make orders accordingly.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 6 May 2011
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