Rubin and Rubin

[2009] FamCA 723

FAMILY COURT OF AUSTRALIA

RUBIN & RUBIN [2009] FamCA 723

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693

Family Law Act 1975 (Cth) ss 75(2), 79

APPLICANT: Mr Rubin

RESPONDENT: Ms Rubin

FILE NUMBER: SYC 1041 of 2008

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE:

12 & 13 March 2009

15 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Humphreys & Feather, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

Orders

1. That within twenty-eight days the husband shall do all things and sign all documents necessary to transfer to the wife his interest in the property situated at and known as M (“M property”) more fully described as Lot … in Deposited Plan ….

2. That simultaneously with the transfer of M property to the wife in accordance with order 1 hereof the wife shall pay to the husband the sum of $84 822.

3. That within twenty-eight days the wife shall do all things and sign all documents necessary to transfer to the husband her interest in the property situated at and known as W property more fully described as Lot … in Deposited Plan ….

4. That in the event that the wife fails to comply with order 2 above the parties shall do all things, pay all necessary monies equally and sign all documents necessary to cause M property to be offered for sale by public auction at a reserve price agreed by the parties and failing agreement at a reserve price set by the President of the Real Estate Institute of NSW then being or his nominee (at the equal expense of the parties) and the parties shall instruct Humphreys and Feather Solicitors to act for them on the sale.  The proceeds of sale shall be distributed in the following order and priority:

   (a)Payment of real estate agent’s commission, advertising costs, legal fees on the sale and adjustment of rates and taxes;

   (b)Payment to the husband of 12.293 percent of the balance and 87.706 percent thereof to the wife;

5. That in the event that M property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause M Property to be offered for sale by public auction successively each eight weeks until sold, at a reserve price initially 10 percent below the reserve price set at the auction pursuant to order 4, and for each subsequent auction at a reserve price 10 percent lower than the last and the proceeds of sale shall be distributed in accordance with order 4 hereof.

6. That by consent on or before 31 October 2009 and on a date agreed by the parties, the wife make the following items available for the husband’s nominee to collect from the former matrimonial home:

   (a)       Antique radio

   (b)       Watercolour painting

   (c)       Stamp albums

   (d)       Four silver coin collection albums

   (e)       One 10 franc Swiss gold coin

   (f)       One 20 franc Swiss gold coin

   (g)       One Catholic family Bible, if it can be located

   (h)       Husband’s family photographs

   (i)        Husband’s clothing and shoes

   (j)        Husband’s music CDs and movie DVDs

7. That the wife be declared the owner at law and in equity of the remaining furniture and furnishings in the M property.

8. That within 28 days the husband and wife shall do all acts and things and sign all documents necessary to sell the Mercedes motor vehicle, registration no…. presently stored in Switzerland and the proceeds of the sale of the vehicle after payment of any sale and outstanding storage costs then payable shall be divided equally between the husband and the wife.

9. That except as otherwise provided herein the husband and wife each be declared the owner at law and equity of all items of property including but not limited to motor vehicles, shares, furniture, personalty including but not limited to money, jewellery and personal effects presently standing in their name or in their respective possession and control.

10. That except as otherwise provided herein the husband and wife remain liable for any debts in their own name as at the date of these orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.

11. That the husband and wife each be entitled to retain such superannuation, annuity entitlements and pension benefits to which they are or might become entitled in their own right.

12. That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders the Registrar of the Family Court of Australia be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the deed or instrument.

13. That all exhibits be released.

14. That both parties have liberty to re-list these proceedings on seven days notice in relation to the implementation of these orders.

15. That the above orders not commence operation until 28 August 2009.

16. That both parties have leave to re-list these proceedings not later than 27 August 2009 for further submissions in relation to the form of the orders only.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1041 of 2008

MR RUBIN

Applicant

And

MS RUBIN

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are property proceedings.  The parties in these proceedings are Mr Rubins and Ms Rubin.  For convenience I shall refer to them as “the husband” and “the wife” respectively.

2. The husband and the wife have approached this Court to make a determination in substantive property proceedings between them in circumstances where they have been unable to resolve their dispute.

3. The husband seeks orders to the following effect:

   -That within 28 days the wife pay him the sum of $188 524.45, transfer to him her interest in the property known as W property and at the same time the husband would transfer to the wife his interest in the former matrimonial home at M;

   -That within three months the wife make various specified items of property available to the husband for collection and that with the exception of these items of property the wife otherwise be declared the owner of the remaining furniture and furnishings in the former matrimonial home;

   -That within 28 days the parties arrange for the sale of the Mercedes motor vehicle registration number … presently stored in Switzerland and that the proceeds of sale after paying sale costs and any outstanding storage costs be paid 55 percent to the husband and 45 percent to the wife;

   -That otherwise the husband and the wife each be declared the sole owner of all other items of property in their possession and / or control respectively;

   -That the husband and wife remain liable for any debts in their own name and indemnify the other in respect of any liability for any such debt;

   -That the husband and wife each be entitled to retain such superannuation, annuity entitlements and pension benefits to which they are or might become entitled in their own right; and

   -That certain machinery orders be made.

4. On the other hand, it is not clear what specific orders the wife seeks except that learned counsel for the wife in final submissions indicated that a fair result would be that the wife would enjoy 55 percent of the property available for division between the parties and the husband would enjoy 45 percent thereof.  The Court also understands that the wife would prefer to retain the former matrimonial home at M rather than have this transferred to the husband or require it to be sold.

Background

1. The husband was born in 1955 in Switzerland and he is therefore 54 years of age.  The wife was born in 1950 and she is therefore 59 years of age.  The parties met in Africa in 1978 where the husband was working with T Company.  The wife was working as a trainee nurse. Upon completion of her nursing training in late 1979 the parties emigrated to Switzerland and commenced cohabitation.

2. Initially the parties lived with the husband’s parents.  After approximately 6 months they rented an apartment.  The husband was working as technician and the wife was working as a nurse.

3. They married in October 1981 in Zurich, Switzerland.  They separated on 7 March 2007.  There are no children of the marriage.

4. The wife has a daughter from a previous relationship, who was born in 1965. 

5. At the time the parties commenced cohabitation, neither the husband nor the wife owned any assets of significant value apart from a jointly owned Volvo motor vehicle which the husband’s parents had purchased for them shortly before their marriage. 

6. In early 1982 the wife’s daughter, who was then 16 years of age, came to live with the parties.  The wife’s daughter returned to Africa after approximately one year.  But the parties continued to provide financial support for her.

7. In September 1986 the parties migrated to Australia.  The wife obtained employment as a nurse with S Hospital and also worked with a nursing agency.  Approximately five months after the parties migrated to Australia the husband obtained work as an engineer working full time.  The parties’ salaries were similar.  They rented a home at H

8. On 30 March 1988 the parties purchased M property for $112 500.  This was funded from monies redeemed from the parties’ superannuation funds in Switzerland and from $87 000 borrowed from the Commonwealth Bank.

9. The parties subsequently undertook renovation of their property, most of the work being undertaken by the husband.

10. Then the wife’s daughter came out to Australia and lived with the parties.  They supported her as she was unemployed. The wife’s daughter subsequently moved to live with her partner.  They had a child, a daughter.  The parties continued to make some cash gifts to the wife’s daughter.

11. In 1989 both parties became Australian citizens.

12. In February 1991 the parties returned to Switzerland to live.  The husband obtained employment as an engineer with a government instrumentality.  The wife worked as a nurse. They rented out their M home and rented an apartment in Zurich as their residence.

13. Shortly thereafter the wife’s daughter separated from her partner.  She subsequently married Mr M.  As a wedding gift the parties paid for the wife’s daughter, her husband and their by now three children to fly to visit the parties in Switzerland and return to Australia.

14. The parties established a business.  The wife is an accomplished artist.  She has earned revenue from performances and from sales of her art.  The husband was in effect the wife’s manager.  He attended to provision and management of equipment, artistic engagements, marketing and the financial management of this business.

15. In February 1994 the parties discharged the mortgage to the Commonwealth Bank over their M property.

16. In March 1994 the parties purchased the property at H for $170 000 as an investment.  They borrowed $173 000 from Westpac.

17. On 15 August 1996 the parties purchased a further investment property at W for $220 000.  They borrowed $230 000 from Westpac Banking Corporation.

18. In 1998 the wife reduced her nursing employment to 4 days per week.  She obtained employment making and selling food products.  The husband assisted with packing and delivering this product.

19. Between November 2001 and September 2004 the wife’s employment as a nurse reduced to part-time.  The wife continued to work as an artist with the husband’s assistance.

20. For quite some time the wife had been wanting to return to live in Australia.  But the husband was reluctant to leave his employment in Switzerland.  In any event, in September 2003 the parties took out an equity access loan from Westpac for financing the demolition of the old house and construction of a new home at the M property.  The contract price for building the home was $268 782. The parties borrowed in excess of $350 000.

21. In 2003 the husband applied approximately Swiss francs 11 000 from the parties’ joint account to discharge the mortgage over the H property.

22. In approximately July 2004 the husband travelled to Australia for the purpose of inspecting progress on the parties’ new home.  He broke his flight in Thailand.  The wife contends that it was at this time that the husband commenced a long distance relationship with a girlfriend in Thailand Ms V.  The husband denies this contention.

23. In October 2004 the wife received a lump sum superannuation payment of 130 605.50 Swiss Francs and deposited this into the parties’ joint UBS account

24. In December 2004 the parties returned to Australia to live.  They moved into their M property. They brought numerous items of furniture and fittings from Switzerland to furnish their new home including numerous items recently purchased for this purpose.

25. In December 2004 the husband received his lump sum superannuation payment of CHF248 160.95 and deposited this into the joint UBS account.

26. The parties had hoped that the husband would be able to establish a business in Australia. The husband did not undertake paid work upon returning to Australia. Shortly after his return he undertook some initial work in exploration of the possibility of importing goods from Switzerland for sale in Australia.  In fact a few thousand dollars were paid to a consultant who was assisting the husband in the preliminary inquiries about the feasibility of such a venture.  But there were difficulties with importation requirements.  By August 2005 the husband realised that he would have to abandon his plans for such a business.

27. Sadly the husband’s father died in February 2005.  The parties travelled to Switzerland for the funeral.  Then they returned to Australia.

28. The wife was working in two jobs, one at H Hospital and the other on a part time basis with nursing agencies.

29. Between 2005 and 2007 the parties maintained a Swiss government pension.  The wife contributed to both her own, as well as the husband’s, Swiss pension from 2005 to 2007 in the absence of the husband having income from which he could pay the necessary payments. But because the husband was unemployed the required payment was very modest. 

30. In October 2005 the husband travelled to Europe via Thailand to collect his mother to stay with the parties for three months.  The costs of his travel and accommodation were met by his mother.

31. In January 2006 the husband accompanied his mother to Thailand and she then returned to Switzerland.  The husband stayed three weeks in Thailand.  The costs of travel and accommodation were met by his mother.

32. In January 2006 the wife went to Africa to visit her sister who had a terminal illness.

33. In June 2006 the wife went to Europe for a holiday as the husband had disclosed his affair with his girlfriend to her.

34. By 2006 the husband had the view that the parties were living beyond their means.  They sold their H home unit, settlement of the sale occurring on 10 July 2006.  The property sold for $285 000 with net proceeds of $268 705 (including deposit).  The husband and the wife each received approximately $88 700 from the proceeds.  The husband paid $53 485 into the Westpac property investment loan account to discharge that loan.  There is an issue between the parties in relation to how the Westpac property investment loan had progressed to the level to which it had by this time.  I shall refer to this again below.

35. In November 2006 the wife  travelled to Africa for 10 days to visit her sister whose health was deteriorating seriously. 

36. The husband travelled to Thailand for one month between 11 November and 14 December 2006.

37. In December 2006 the wife travelled to Switzerland.

38. On 25 January 2007 the wife again travelled to Africa to attend her sister’s funeral. 

39. Between 31 January and 28 February 2007 the husband travelled to Thailand for 3.5 weeks.

40. The husband travelled to Thailand between 19 April and 14 May 2007.

41. On 19 March 2007 Ms V came from Thailand to Sydney for a visit.

42. On 7 May 2007 the parties finally separated. 

43. On 12 May 2007 the husband brought Ms V from Thailand to Sydney a second time and stayed with her until 13 June 2007.

44. On 14 June 2007 the husband left Australia permanently. His destination was Switzerland but he spent a few days in Thailand during which period he made an application to reside permanently in Thailand as a retired person.  The husband then spent 6 or 7 weeks in Switzerland and then he returned to Thailand where he has been living since.  He was granted a 12 months retirement visa by the Thai authorities and this was renewed for a further 12 months from 22 January 2009.

45. In June/July 2007 the wife travelled to Switzerland from Australia.  The parties leased the W property and received half the net rent each.

46. The wife’s daughter has been living rent free in the former matrimonial home at M for quite some time.  For a long time the husband has been endeavouring to persuade the wife to require her daughter to pay rent or to vacate the property so that it can be rented.

The Applicable Law

1. Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.

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

3. There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79. This involves four inter-related steps. Firstly, the Court should make findings about 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), 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.

4. This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Alleged appropriation of funds

1. A major issue in these proceedings involved assertions by the wife that the husband appropriated funds of approximately $365 000 to his own use.  The wife said that it was the husband who did the banking and attended to financial matters during the marriage.

2. In her affidavit the wife set out the details of these assertions in effect as follows:

   1.On 16 November 2004 the husband retained and/or dealt with the remainder of his Swiss UBS account the relevant amount being 22 445 Swiss Francs (approximately AUD20 000)

   The husband said that 15 000 Swiss Francs were spent on the costs of a shipping container for the parties’ property to be transported from Switzerland to Australia.  I accept this.

   2.Between 24 April 2006 and 2 June 2006 the husband withdrew $15 500 from the parties’ joint Westpac equity access account and used the monies for his personal expenditure and on 22 May 2006 the husband transferred $6676 from the Westpac account to the husband’s UBS account

   The husband said that $4000 was withdrawn on 29 May 2006 to use as spending money when the wife wished to return to Switzerland to pay the required subscription on her Swiss pension fund.  He said that on 22 May 2006 he withdrew $7000 from the Classic Plus account and $6676 from the H Bank account and deposited these amounts in the Swiss UBS joint Bank account.

   The wife conceded that she used the $6676 for the parties’ pensions and she said that she asked her solicitor to correct this assertion in her affidavit and that this was not done. 

   In my view, this relevant evidence on its most favourable interpretation to the wife’s case could only support the husband as having had the benefit of funds the equivalent of approximately AUD4000.

   3.In July 2006, the husband retained and dealt with $91 306 from the proceeds of sale of the H property.  It is common ground that the net proceeds of sale were $268 705 and that each of the parties was paid $88 700.  In relation to the balance, the husband said that $53 485 was paid off the loan account for the W property and $11 595 was deposited in the Plan 2 account which represented money borrowed to build the new home at the M property.  The husband said that the wife and he dealt with the balance.

   The wife said that the loan account had not previously been in deficit, the inference being that the husband had used it to generate funds which he has used for his own purposes.  It is the case that the husband was unable to provide a detailed explanation for how the increase in money owed on these loan accounts came about.  But of course the parties were endeavouring to meet their expenditure from the income of the wife only whereas during the years before their return to Australia both parties had been in employment.  In addition, during 2005 they purchased two motor vehicles and they spent money on their new home over and above the contract price for the construction.

   4.On 19 December 2006 the husband withdrew $60 000 from his employer’s Staff Credit union account.  The husband said that these funds had been sourced from the net proceeds of sale of the H property.  The $60 000 was paid to the Maxi Direct account.

   5.In March 2007 the husband transferred $82 300 to his Staff Credit Union account for his own use.  But this was from the $88 700 which he received from the net proceeds of sale of the H property.

   6.In September/October 2007 the husband withdrew $86 616 from his Thai Bank accounts.  But the source of this was the same $88 700 referred to above.

1. What I make of all this is that the husband has gone a long way in terms of answering the assertions made by the wife.  I am unable to completely discount the possibility that the husband might have diverted some of the matrimonial funds to his own purposes.  But in my view the wife has not come anywhere near satisfying the required standard of proof in this regard.  This appeared to me to be conceded in final submissions by learned counsel for the wife.

2. In any event, I had a more favourable view of the husband as a witness than I did of the wife.  He was forthright in his answers to questions and he demonstrated a much better grasp of detail than did the wife even allowing for the fact that it was the husband who attended to the financial affairs of the parties.

3. Accordingly, in my view, the assertions by the wife to the effect that the husband has had the benefit of significant marital funds and that those have not properly been brought into account by him as required under the duty of disclosure have not been established on the evidence.

Property available for division

1. The property available for division between the parties consists of the following:-

$
1.         M property	690,000
2.         W property	565,000
3.         Mercedes Benz motor vehicle (joint – to be sold)	5,000
4.         Wife’s Toyota Corolla	6,000
5.         Wife’s home contents	15,000
6.         Wife’s Westpac account	3,086
7.         Wife’s UBS account	8,000
8.         Wife’s First State Super	10,910
9.         Wife’s Swiss Life	6,646
10.      Husband’s Co-op Bank Switzerland	497
11.      Husband’s Ford Aspire	4,500
_____________
$1,314,639

1. There are no liabilities.

Contributions

1. The parties cohabited for more than 27 years.

2. Over that period each of the parties was employed for the majority of the time.  The wife worked primarily in her nursing profession both in Switzerland and Australia.  But she complemented this by using her talent as an accomplished artist to generate the additional income which this business produced.  And she also did the other work referred to above.  The wife worked hard.

3. But so did the husband.  He worked initially as a technician in Switzerland.  When the parties migrated to Australia there were a few months during which the husband was unemployed before he obtained his employment as an engineer.  Upon the parties returning to live in Switzerland in 1991 the husband obtained his employment as an engineer with a State authority.  He had continuity of employment in this area until 2004 when the parties moved back to live in Australia.  As also indicated above the husband assisted the wife in her art business and there was no suggestion that his efforts in this regard were not significant.

4. When the wife made it clear that she was desirous of moving back to Australia the husband expressed his reluctance to do this. Amongst the reasons for such reluctance was the fact that he did not wish to resign from his long-standing employment in Switzerland and his concern that it might be difficult for him to find employment in Australia.

5. Upon the parties returning to Australia the husband no longer worked in paid employment.  As indicated above, initially the husband was using much of his time to endeavour to establish a business.  But unfortunately his efforts in this regard did not result in any business being established.

6. It was conceded on behalf of the wife that up to the time that the parties returned to Australia the Court would assess their contributions in all relevant areas to have been equal.  But it was submitted that there are reasons why the Court would assess a 2.5 percent differential in the parties’ overall contributions in favour of the wife.

7. The first reason was that the husband did not earn income after the time that he relinquished his employment in Switzerland in late 2004, whereas the wife worked in two jobs. The other reason was that the husband had taken numerous overseas trips mostly to Thailand during the period between 2004 and March 2007 when they separated, the inference being that he applied marital funds to this purpose as distinct from using the funds for the joint purposes of the parties.

8. I must say I am unpersuaded by this submission.  In relation to the first part of the submission, as I have said above, for six months or so after the parties arrived in Australia the husband had been endeavouring to establish a business.  I am at a loss to understand why this would not be regarded as a relevant contribution.  The balance of the period of unemployment complained about by the wife would have been approximately 1½ years.  In my view, to endeavour to advance an approximately 1½ year period of unemployment in the circumstances in which it has occurred in this case against the background of all the contributions made over a 27 year cohabitation, to justify a finding of an imbalance of contributions overall of 2.5 percent would have to be difficult.  In my view to accept this would be to visit a significant unfairness on the husband. 

9. The second part of the submission related to the husband’s overseas travel.  In my view, there is no substance in this part of the submission.  As was submitted by learned counsel for the husband, true it is that the husband has undertaken numerous overseas trips since the parties returned to Australia but so did the wife.  In these circumstances, the reality is that each of the parties has used funds for overseas travel which could have been directed to their joint benefit.  In my view, again there is no substance in the submission.

10. So far as the contributions which the parties each made to their welfare as a family unit and as homemakers are concerned there has been no submission to the effect that the Court would make a finding different from equality.

11. In all the circumstances, in my view the contributions of the parties overall during their lengthy period of cohabitation are to be assessed as having been equal.

s 75(2) matters

1. The husband is 54 years of age and he is in reasonable health.  His income consists of approximately $195 per week which is his share of the rent which the parties receive from the tenant of their investment property at W.

2. The husband is unemployed.  He is living in Thailand with his partner Ms V.  Ms V’s income is approximately $250 per week and she owns an interest in a property in Thailand.

3. On the other hand the wife is 59 years of age and she also is in reasonable health.  Her income is $1738 per week consisting of her share of the rent from the tenant of the parties’ W investment property and her salary from her nursing employment in Switzerland.  At the present time the wife is not pursuing her arts career.

4. There is a strong submission on behalf of the husband to the effect that, taking account of all relevant matters pursuant to s 75(2) of the Act, the Court would determine a set-off of 5 percent of the available property in favour of the husband in order to arrive at a just and equitable order as required by s 79(2) of the Act.

5. This was submitted on three bases namely, what was said to be the wife’s superior income and earning capacity, financial support provided by the parties to the wife’s daughter and other members of the wife’s family and the refusal by the wife to require her daughter to vacate the former matrimonial home so that it could be rented out with the result that the parties could avail themselves of income from such rental.

6. In relation to the first of these submissions in my view, there is little between the capacities of these parties to earn income.  It is true that the wife continues to earn at the level of income which generally she enjoyed during the marriage working in her profession of nursing.  It is also true that the husband is unemployed.  But in my view, he has chosen his current circumstances, that is to live in a country in which the conditions of his residence there require that he does not work.

7. As indicated above, the husband had some reluctance in agreeing to the wife’s wish to leave Switzerland in 2004 and return to Australia.  His reluctance included a concern that he would have to resign from his position with the Swiss authority.  And he was not confident that he would be able to find appropriate employment in Australia.  As also indicated above, he has not worked in paid employment since that time.  But as was submitted on behalf of the wife there is no evidence before the Court of any applications for positions of employment in Australia after the period in approximately August 2005 when it became clear to the husband that he was not going to be successful in establishing a business in Australia.  Whatever limits there might have been, if any, to the husband being able to obtain employment in Australia, he has chosen neither to work in Australia nor to return to Switzerland where it would appear he regarded his prospects for employment to have been stronger than those in Australia. 

8. In all these circumstances, I feel unable to find that the husband’s capacity for earning income is any less than that of the wife.  After all, during many years of their marriage they earned income at a generally similar rate.  In my view, the reality is that the husband has chosen not to live in places where it would be more likely than not that he would be able to obtain appropriate income-producing employment.

9. I turn to consider the second submission which is that during the marriage the parties provided gifts of money to the wife’s daughter and other relatives of the wife.  It is true that the wife’s daughter lived with the parties for something like a year.  It is also the case that money has been provided to the wife’s daughter and her children, to the wife’s mother and other relatives and other gifts were provided over the years that the parties lived together.  But I am not persuaded that the level of such gifts has been such that it would be appropriate after all these years to make an adjustment of property in favour of the husband on account of this.

10. I now consider the final submission in this area relating to firstly the wife’s enjoyment of the former matrimonial home for some months after the husband left the home and subsequently the wife’s daughter’s enjoyment of occupying the home without paying rent to the parties.  There is no question that the husband left the home and the wife remained living there for a few months.  It is also the case that the husband requested the wife on more than one occasion to ask her daughter to leave the home so that it could be rented with the result that the parties could have the benefit of receiving some income from rent.  It would appear that the husband would probably have been better off to some extent if he had been in receipt of some rent.  But the wife also wanted the home to be well looked after because she wanted ultimately to have the husband’s interest in the home transferred to her.

11. In any event, even accepting that the husband has probably suffered some loss in this regard I am not persuaded that it would be appropriate to set-off some of the available property in favour of the husband to take account of this.

12. In my view, upon a consideration of all the relevant s 75(2) matters it is not appropriate to make an adjustment of property either in favour of the husband or the wife. This is particularly the case because of the broad approach that I have taken in the assessment of the parties’ contributions overall to their property.

13. Accordingly, in my view a just and equitable order will require a division of the available property between the parties in equal shares.

Conclusion and fourth step

1. The wife is to enjoy 50 percent of the property available for division between the parties ($1 314 639) which is property with a value of approximately $657 319.

2. The wife has the following property:

$
1.         50 percent of Mercedes Benz motor vehicle	2,500
2.         Toyota Corolla motor vehicle	6,000
3.         Home contents	15,000
4.         Westpac account	3,086
5.         UBS account	8,000
6.         First State Super	10,910
7.         Swiss Life	6,646
_________
$52,142

1. The wife has no liabilities.

2. For the wife to achieve property with a value of $657,319 the wife would require further property with a value of $605,177 ($657 319 - $52 142 = $605 177).  This can only come from the former matrimonial home.

3. The wife wishes to retain this home.  Accordingly, she will have to pay to the husband the difference between the value of the former matrimonial home ($690 000) and $605 177.  This is $84 823.

4. On the other hand, the husband is to enjoy 50 percent of the property available for division.  This is property with a value of $657 319.

5. The husband has the following property (including W property):

$
1.         W property	565,000
2.         50 percent of Mercedes Benz motor vehicle	2,500
3.         Co-op Bank, Switzerland	497
4.         Ford Aspire motor vehicle	4,500
__________
$572,497

1. The husband has no liabilities.

2. For the husband to achieve 50 percent of the available property ($657 319) he would require a payment of $84 822 ($657 319 - $572 497 = $84 822). 

3. If the wife was unable to pay this amount to the husband the parties would be required to place the property on the market for sale.  In such circumstances the wife would be paid the equivalent of $605 177 as a percentage which is 87.706 percent of the net proceeds of sale and the husband would be paid the equivalent of $84 822 which is 12.293 percent thereof.

4. The orders I propose will not affect the earning capacity of either party.

5. After this long marriage each of the parties will own a property.  The wife would have a modest liability in money to be borrowed to pay to the husband for his interest in the home.  But the wife has ample income to enable her to service such a loan.  On all present indications she should be able to work in her profession still for some years. 

6. On the other hand the husband will have the benefit of rent received from the W property or he could sell this.  He will also have a modest lump sum.  In any event, he could always reside in a country in which he was not subject to employment constraint and thereby earn income.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              11 August 2009