SANTO & SANTO
[2012] FMCAfam 261
•27 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANTO & SANTO | [2012] FMCAfam 261 |
| FAMILY LAW – Property – division of the matrimonial assets. |
| Family Law Act 1975, s.75 |
| Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143 |
| Applicant: | MR SANTO |
| Respondent: | MS SANTO |
| File Number: | ADC 2015 of 2009 |
| Judgment of: | Cole FM |
| Hearing dates: | 20 & 23 August 2010, 25 & 26 May, 5 and 21 December 2011 |
| Date of Last Submission: | 21 December 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 27 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Jordan |
| Solicitors for the Applicant: | Robinson & Mason |
| The Respondent: | Ms H Tinning and then Self-represented |
ORDERS
The husband pay to the wife the sum of $68,433, within 90 days.
Contemporaneously upon receipt of the money referred to in paragraph (1) hereof:
(a)any interest the wife may have in:
(i)the business known as “[T]”;
(ii)the property situated at Property Y;
(iii)the furniture and chattels in the husband’s possession;
(iv)the husband’s superannuation benefit;
(v)any bank accounts in the husband’s name
vest in the husband absolutely; and
(b)any interest the husband may have in:
(i)the proceeds of the sale of the Pajero motor vehicle;
(ii)the wife’s jewellery;
(iii)the furniture and chattels in the wife’s possession;
(iv)the 2008 tax refund and the 2007 and 2008 Family Tax Benefits received by the wife;
(v)the wife’s superannuation policy;
(vi)any bank accounts in the wife’s name
vest in the wife absolutely.
Each party indemnify the other and keep them indemnified in respect of any liabilities arising from the property retained by that party pursuant to these orders.
The wife indemnify the husband and keep him indemnified in respect of the debt due and owing to the wife’s parents.
The husband indemnify the wife and keep her indemnified in respect of the debt due and owing for the agent’s advertising costs and the Savings & Loans credit card.
The husband take such steps as are reasonably required to close the joint credit card with Savings & Loans.
Liberty to the parties to apply in respect of any consequential orders.
All applications are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Santo & Santo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2015 of 2009
| MR SANTO |
Applicant
And
| MS SANTO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the competing applications of the parties for the division of the matrimonial assets.
The parties married [in] 1998 and separated on either 19 or 28 December 2008 when the husband left the former matrimonial home.
The parties have three children namely [name omitted] who is now twelve, [name omitted] who is now ten and [name omitted] who will be eight this year.
After extensive litigation, orders were made by consent on 2 March 2010 in respect of the children which in effect provide for the parties to have shared care.
The husband continues in his work as an [omitted] operating his own business known as [T] in partnership with his new wife, Ms B. Ms B was previously known as [name omitted]. For the purposes of this judgment I will refer to her as Ms B.
The wife remains employed on a contractual basis with [omitted], however that contract can be terminated without notice.
The evidence
The husband relies on:
a)his Application filed on 25 May 2009;
b)his Trial Affidavit filed on 5 March 2010;
c)his updated Affidavit filed on 13 July 2010;
d)his Financial Statement filed on 13 July 2010;
e)the Affidavit of Mr C filed on 5 March 2010;
f)the Affidavit of Mr H filed on 19 March 2010;
g)the further Affidavit of Mr H filed on 2 August 2011; and
h)his Affidavit filed on 5 December 2011.
The husband and Mr C gave evidence and were cross-examined.
The wife relies on:
a)her Trial Affidavits filed on 5 March 2010, 16 July 2010 and 23 July 2010;
b)the Affidavit of her mother, Ms S filed on 5 March 2010;
c)her Financial Statement filed on 15 March 2010;
d)her subsequent Financial Statement filed on 23 July 2010;
e)her Affidavit in reply filed on 12 December 2011; and
f)the Affidavit of Mr B which was tendered by agreement on 23 August 2010.
The wife, her mother Ms S, and Mr B gave evidence and were cross-examined.
The parties’ proposals
The husband seeks orders that in effect divide the assets of the parties equally between them.
The wife seeks orders that provide her with 65% of the net value of the matrimonial asset pool.
There is some dispute over the identity and value of the asset pool, the contributions of the parties and the relevant s.75(2) factors.
When the trial commenced in August 2010, the wife was represented and had instructed Counsel.
Counsel withdrew after the second day of the hearing.
The wife filed a Contravention Application in respect of the husband’s alleged failure to comply with orders for the sale of their home.
The matter proceeded before me on 25 and 26 May 2011. The trial was adjourned for some six months to allow time for the further negotiations with the bank which had instituted proceedings for possession of the property. By agreement an interim order was made for the transfer of the property to the husband, subject to the consent of the bank, by way of interim property settlement.
Having spent some time narrowing the dispute on the asset pool in the first two days of trial, the parties managed to reach further agreement in respect of a number of issues.
That agreement included dismissing the Contravention Application filed by the wife on 15 September 2010 with no order as to costs (the matters complained of having been resolved).
The matter concluded with closing submissions on 5 and 21 December 2011, the proceedings with the bank having been resolved.
The Law
In determining what orders should be made for the division of the matrimonial assets, I am required to take an approach that involves four inter-related steps, namely to:
a)identify and value the property, liabilities and financial resources of the parties at the date of the hearing (“the asset pool”);
b)identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) of the Family Law Act 1975 (“the Act”), and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“the contributions”);
c)identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) of the Act so far as they are relevant and determine the adjustment (if any) that should be made to the contributions-based entitlements the parties established at step two (“financial resources and needs”); and
d)consider the effect of these findings and determination and resolve what order is just and equitable in all the circumstances of the case (see Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143).
I will now consider these matters.
The asset pool
In respect of the asset pool, the parties have reached agreement as follows:
| ASSETS | WIFE | HUSBAND | STATUS |
| Property Y farm (H & W) | $630,000 | $630,000 | Agreed |
| [T] (H) | $54,545 | ($92,438) (as per draft balance sheet 31/12/08) | Not Agreed |
| Mitsubishi Pajero (W) | $8,500 | $8,500 | Agreed |
| Farm plant and equipment | $7,189 | NK | Excluded by agreement |
| Hay | $4,500 | Nil | Excluded by agreement |
| 10 sheep | $600 | $400 | Excluded by agreement (refer to mortgage payments) |
| Jewellery (W) (those pieces remaining) | $2,250 | $2,250 | Agreed |
| Savings & Loans joint account at separation (H says it was a credit card debt) | ($2,033) | ($2,033) | Agreed |
| Husband’s business tools and van | $4,770 | Nil (included in business balance sheet) | Agreed |
| Furniture at Property T (W) | $220 | $220 | Agreed |
| Furniture from farm (W) | $8,500 | $8,500 | Agreed |
| Furniture from farm (H) | $3,500 | $3,500 | Agreed |
| Furniture from Property M (H) | $1,360 | $1,360 | Agreed |
| Ice machine (H) | $275 | $275 | Agreed |
| Quad bike and metal (H) | $480 | $480 | Agreed |
| Tax refund 2008 (W) | $1,700 | $1,700 | Agreed |
| Family Tax Benefit (2007) | $3,851 | $3851 | Quantum Agreed |
| Family Tax Benefit (2008) | $5,942 | $5,942 | Quantum Agreed |
| Family Tax Benefit (2009) | $5,000 | ||
| Quad bike not presented for valuation (H) | NK | NR | Excluded by agreement |
| Fire-fighting pump and equipment not presented for valuation | NK | NR | Excluded by agreement |
| Portable generator not presented for valuation (H) | NK | NR | Excluded by agreement |
| Wine collection (H) | Ignore | Ignore | Agreed |
| 20 cattle sold by husband | NK | NR | Excluded by agreement |
| 1 cow sold by husband | $200 | $200 | Agreed |
| Cattle sold by wife | $8,303.90 | $8,303.90 | Agreed (brought to account in mortgage payments) |
| Ford F250 motor vehicle (sold by W) | $22,000 | $36,750 (as valued by [omitted] Valuers) | Not Agreed |
| Wife’s superannuation - [1] - [2] | $9,400 $15,328 $24,728 | Agreed | |
| Husband’s superannuation was $36,941, cashed in to payout mortgage | $27,267.46 | Agreed |
| LIABILITIES | WIFE | HUSBAND | VARIANCE |
| CBA Property Y mortgage | $414,953 | $414,953 | Agreed |
| Property Y mortgage interest due 28/8/10 | Excluded | ||
| Outstanding agent’s advertising costs $5,352 ([1]) $2,256 ([2]) | $7,608 | $7,608 | Agreed |
| Commission and sale costs for Property Y | Ignore | NR | Excluded (Property transferred to husband) |
| Debt due to wife’s parents | $37,000 | Nil | Not agreed |
| Wife’s ANZ credit card at separation | $1,500 | $1,500 | Agreed |
| Wife’s AMEX credit card at separation | $1,709 | $1,709 | Agreed |
| Husband’s credit card debt at separation | NR | Included in business balance sheet but to be vouched | |
| Wife’s HECS debt at separation | $6,403 | $6,403 | Agreed |
| Wife’s personal tax debt at separation | $3,894 | $3,894 | Agreed |
| F250 finance debt | $20,000 | $20,000 | Agreed |
| Outstanding [M] Council rates | $2,000 | $2,000 | Agreed |
Issues arising from agreed asset pool
The outstanding issues that remain in respect of the asset pool are as follows:
a)the treatment of the payment of the mortgage and the accrued arrears;
b)the monies alleged to be due and owing to the wife’s parents for $37,000;
c)the value of the husband’s business;
d)the debt accrued by the husband’s business from June 2008 to December 2008 when the parties separated;
e)the value to be attributed to the Ford F250 motor vehicle;
f)the husband’s superannuation; and
g)Family Tax Benefit.
I will refer to these matters below and in the course of considering that will also comment on the parties’ evidence.
Mortgage payments and arrears post separation
On 16 September 2009, orders were made for payment of the mortgage after the parties had separated. The order was effectively for the parties to share equally in the costs of the mortgage pending the resolution of these proceedings, “the first order”.
The wife vacated the property in late March 2010.
The husband subsequently, save for a short period in 2011, has remained in occupation.
The husband filed an Application on 13 July 2010 to vary the mortgage payments. On 20 July 2010 an order was made requiring the husband to pay the mortgage payments whilst in occupation of the premises as and when they fell due on the understanding that such payments were to be “brought to account against his portion of the matrimonial assets”, “the second order”.
Across the course of this matter, a significant amount of arrears was accumulated and the Commonwealth Bank, the mortgagee, instituted proceedings to take possession of the property.
Those proceedings, at the time of the trial in May 2011, were ongoing before the Supreme Court.
The parties, over the two days of trial, negotiated an interim settlement of property which allowed for the wife to transfer to the husband her estate and interest in the home subject to the mortgage to the Commonwealth Bank and the consent of the mortgagee for an agreed value of $630,000. The husband was then to take steps to apply for the release of his superannuation under the hardship provisions, and apply funds towards reduction of the arrears and payment of the mortgage.
The Court was advised that, due to the bad debt record that had accrued through the accumulation of the arrears, it was necessary for the husband to establish a six month track record with the Commonwealth Bank before consideration would be given to releasing the wife from the mortgage. It was therefore necessary to adjourn the proceedings to December 2011 to enable that to occur.
This arrangement, subject to meeting the requirements of the Commonwealth Bank, meant that the property preserved its value rather than the parties suffering a significant loss by way of a mortgagee sale. Both parties agreed that such a sale meant that the property would be likely to sell for as little as $530,000 thereby incurring a significant loss.
The matter came back before the Court on 5 December 2011.
The husband filed an Affidavit on 5 December 2011 annexing a table showing payments made to the mortgage, the source of payments and the amount outstanding.
The accuracy of the table was not challenged by the wife.
The table shows that:
a)on 28 December 2008 (the date of separation), the mortgage balance was $389,770.67;
b)on 28 March 2009 (being approximately when the wife vacated the property and the husband shortly after taking up occupation), the mortgage balance was $388,473.25;
c)on 16 September 2009 (the date of the first order for payment by the parties), the mortgage balance was $393,418.60;
d)on 20 July 2010, the mortgage balance was $396,145.95 (this being the date the second order was made for the husband to meet the payments);
e)on 21 February 2011, the mortgage balance was $403,591.80.
Interest was accruing on the mortgage debt at a rate of between $2,100 and $2,500 per month, depending upon the amount outstanding.
It is apparent from the table that the wife, save for payments made from the proceeds of the sale of jointly owned cattle, money received from agistment of cattle and proceeds from the sale of some hay, made four payments to the mortgage while she was in occupation of the property (post separation). The payments did not cover the amount due.
The husband, following separation, made weekly payments which ceased on 23 March 2009.
Sporadic payments were made after the order in September 2009 with a lump sum of $9,900 being paid in March 2010.
Regular payments resumed in September 2010 following the order in July 2010 and concluded in November 2010. The payments did not equal the interest accruing on the mortgage debt.
No payments are recorded from December 2010 to the date the mortgage was paid out.
The husband, in his Affidavit of 5 December 2011, stated that he paid out the mortgage using funds obtained from:
a)his superannuation policy ($27,267.26);
b)Eastwood securities (amount not disclosed); and
c)his father ($5,000).
He also was required to pay $10,761.69 in fees to the bank as a result of the default.
The parties agree that the total amount paid out on the mortgage amounted to $414,953.
The transfer of the property pursuant to the orders made in May 2011 was completed; the property is registered in the husband’s name and the mortgage with the Commonwealth Bank has now been discharged.
It is appropriate to note that at the commencement of these proceedings the wife sought on two occasions to have the property listed for sale. The application was opposed by the husband who sought to obtain finance to purchase the property in his own right. He was unable to do so and the parties eventually agreed to list the property for sale in December 2009.
The wife argues that the property did not sell as a direct consequence of the husband’s conduct. Save for the wife’s allegations, which are denied by the husband, there was little or no corroborating evidence on that matter upon which I could rely (the estate agent, for example, not being called to give evidence).
The husband now seeks that there be an adjustment in the division of the assets such that the wife contribute to one half of the mortgage payments made since the date of separation. I have difficulty with this submission.
The husband moved on to the property in or about April 2009. He has had effective control of the property since then.
The husband has been consistent with his desire to retain the property. He was obliged to meet one half of the mortgage payments following the first order made in September 2009 and all of the payments following the second order made in July 2010. He failed to do so.
Whilst he was supposed to be paying the mortgage, he undertook development of his then partner, now wife’s, residence. This is a property that was purchased by Ms B in May 2009.
The wife submits that when the property was purchased in 2009, Ms B was unemployed. The circumstances of the purchase were not fully explained.
The husband, in his Affidavit filed 13 July 2010, submits that he was making no financial contribution to his partner’s property.
In his Affidavit filed 1 October 2010 he refers to he and his partner “having to make the mortgage payments on both the [L] and [Y] properties” (paragraph 17).
He also refers to certain repair work and renovation work being carried out on the [L] property prior to its sale.
He did not say what this was or how much it would cost. Nor does he say who was paying for it or what the arrangements are between him and his partner.
The husband submits that his contributions to the cost of the mortgage can be resolved by way of a mathematical calculation. I do not accept this.
Both parties failed to meet their commitments pursuant to the orders of this Court.
There remains a question mark over the efforts to sell the property and the husband’s desire to retain the same; and the husband’s evidence has failed to resolve the issue.
I therefore do not propose that this be dealt with by way of a mathematical calculation and will give consideration to it and bring it to account when considering the parties’ contributions to the acquisition, conservation and improvement of the assets.
Husband’s superannuation
There is no dispute that it was necessary for the husband to “cash in” his superannuation policy to discharge the mortgage. The discharge of the mortgage and transfer of the property prevented a mortgagee sale and avoided the prospect of the parties incurring further costs.
For the reasons set out above and for the purposes of determining the asset pool, however, I would bring into account the value of the superannuation realised by the husband at the figure provided by him and not challenged by the wife, namely $27,267.26.
The husband’s evidence in respect of the wife’s parents’ loan and the mortgage arrears
The husband commenced giving evidence on the second day of the hearing.
He confirmed that the wife’s parents had helped with the purchase of several properties by having their names put on the Title. This came about as the husband was, at that stage, an undischarged bankrupt.
He was not aware that they had advanced $4,000 to assist with the purchase of any property. Nor was he aware of any subsequent discussion of the $4,000 which was allegedly owing to them.
He was aware that the parties had been gifted $9,000 for the purchase of the farm to assist with the stamp duty. He did not recall any conversation with them and understood that the wife had undertaken that conversation. He had understood that the wife was intending to ask for the money to assist with the shortfall.
His evidence was that there was never any suggestion that the money was a loan. He said that no documents were signed in respect of the alleged loan nor was any no request made by the wife’s parents to sign any documents. He did not know where the money was paid to and considered this was something similar to what occurred with the wife’s sister, Ms J, who received a $50,000 payment as a gift from her parents,
He confirmed that the wife’s parents had also provided money in relation to building works. His evidence was that the money had been paid into Ms Santo’s account.
He also confirmed that funds had been paid to assist with an outstanding debt due to [omitted] Plumbing at a time when the business had a cash flow crisis. Once again, the wife did not, he said, advise this was a loan from her parents. He said the wife was responsible for the bookwork that year and there was no conversation regarding with the loan at that time.
The husband’s evidence in respect to the injection of cash funds from the wife’s parents was, at best, disingenuous.
He conceded that an amount of $37,000 had been advanced by the wife’s parents. He advised that he had no knowledge as to any of the conversations regarding the advancement of these funds. He also, when asked, confirmed that he had not raised this with the wife. There was no suggestion in his evidence that he had thanked them or in any way approached them to discuss being the beneficiary of their generosity.
I have difficulty accepting his evidence in these circumstances. The husband had been an undischarged bankrupt. The wife’s parents had provided significant support simply by putting their names on the Titles of properties that the parties had purchased in the course of their relationship in Queensland and, amongst other things, had been party to the mortgages for the Property C and [G] property purchased by the parties, amongst other things. There were then a series of payments totalling $37,000 which, according to the husband, was never discussed with the wife’s parents. To put it simply, this is unbelievable.
The husband also gave evidence in respect of the mortgagee possession proceedings that were currently before the Supreme Court.
He indicated that the mortgage was some $33,000 in arrears. This does not appear to accord with the figures before the Court - the figure more likely to be in the region of $20,000 to $25,000.
The husband, shortly after separation, re-partnered with his current wife, Ms B. Over the period of time since December 2008, the husband has contributed to the household expenses of Ms B, although his evidence is there was no set contribution. He helped out as and when he could.
Ms B helps the husband in his business carrying out administrative duties, and has not been engaged in other work since 2009. There is no evidence that she receives any income other than remuneration for her work in the business.
Across that period of time, Ms B has undertaken some significant renovations on her [L] property. That evidence is set out in an Affidavit filed by her in support of the husband’s interim Application seeking orders that the wife transfer the former matrimonial home to him.
An order was made that the husband be permitted to occupy the former matrimonial home on the basis that he pay the mortgage.
The husband’s evidence was that he had made several offers to purchase “the property from the wife however these proposals were either ignored or the counter proposal was unacceptable”.
As a consequence, having moved into the property and having agreed to an order that he be responsible for the cost of the mortgage, he:
a)allowed further mortgage arrears to accrue; and
b)vacated the property in February 2011.
He subsequently returned to the property in March 2011 however by that time, proceedings had been instituted by the Commonwealth Bank.
As a consequence of the Bank’s actions and in an attempt to preserve part of the equity in the matrimonial pool, it was necessary for the parties to reach the agreement they did and seek orders by consent by way of an interim property settlement.
The wife raises some concern that the husband’s resources which should have been allocated to ensuring that the mortgage did not fall into arrears, were diverted to the renovation project on his new wife’s property. The husband’s evidence does not ease those concerns
Ms S – Parents’ Loan
Ms S, the wife’s mother, was interposed during the husband’s evidence to provide evidence in respect of the alleged loan. Her evidence was extremely clear.
During cross examination, Ms S provided further particulars in respect of the loans, conversations surrounding the loans and the arrangements for repayment. I pause to note, however, that these particulars were not set out in her Affidavit. While I consider this to be a flaw in her evidence, I do not consider it fatal.
When challenged about this, she did not resile from her position and remained very clear that the advance of the funds was never by way of a gift.
In respect to the allegation that she had provided her daughter Ms J with similar treatment in that she had advanced funds by way of a gift, she was clear that this was not the case. She stated that Ms J had, in fact, paid one loan from the proceeds of the sale of a house she had previously owned and was in the process of repaying another loan.
Ms S confirmed that there were no documents to confirm the loans made as she did not expect it was necessary when dealing with members of her family.
She was also clear that there was no interest being charged on the outstanding amount.
She expected the money to be paid back. However, save as referred to below, there were no clear terms of repayment. She said she and her husband were asked if they could help and the response was “yes we can”. When asked to advance funds for the purchase of the farm, she recalled that she and her husband had conversations with the parties on two separate occasions at their home. There was a further conversation that took place at the home of Mr and Ms S.
The parties had indicated that they would repay the funds once the farm was self sustaining which they expected to be in about five years’ time when they would, in addition to the earnings from the husband’s business, be receiving funds from farming activities such as agistment of stock and sale of hay.
When asked if she had made a demand for the repayment of funds to date, she said that “the five years have not elapsed”.
In respect to the $15,000 loan she recalled receiving a telephone call from Ms Santo (her daughter) saying that they were giving consideration to downsizing and buying a property in [omitted].
Prior to selling the farm however, they needed the kitchen to be completed. She was therefore asked if they could advance some funds to assist with this.
Her response was that she “would have to think about this and let them know”.
Ms S’s evidence was that they later met and she advised the parties that they would advance the sum of $15,000. They went to [omitted] pub for dinner that night where they discussed what they should do. She recalled the husband discussing the effect of the global financial crisis on his business and his desire to downsize. They agreed that all monies that had been advanced were to be repaid on the sale of the house. At that stage, the monies advanced by the wife’s parents amounted to $28,000.
She was very clear that she did not say that she would rather the wife have the money now than wait until she was dead. Ms S confirmed that she and her husband had lent a further $9,000 before the parties’ separation for payment of the debt to [omitted] Plumbing. This was on the understanding that once the money that was due and owing to the business had been paid, the $9,000 advanced by her husband and herself would be repaid to them.
When it was clear that the marriage was in trouble, she raised this with her daughter during the Christmas break. She asked what would happen with the repayment of the monies and the daughter said “I don’t know”. At the time, it appeared the wife was not sure whether the marriage was over.
Ms S was criticised by the husband’s Counsel for not having done anything to demand repayment. Her response, however, was that she believed that going through this Court was the correct forum. I accept her evidence on this point.
She further stated that she was distraught when she realised the parties had separated.
She was asked if this was all the money advanced to her daughter. She confirmed that she had advanced $62,000 by way of payment of her daughter’s legal costs. These funds had been provided by way of a draw down on the portfolio loan that she and her husband had. This loan was not interest free as interest accrued on any amounts drawn from the portfolio loan. Her daughter had been re-paying a sum of approximately $100 per week which was paid direct into the portfolio loan account. The interest charged is the interest that the portfolio loan charges against any outstanding amount. She did not include this information in her Affidavit as she did not think that this was relevant at the time.
I accept the evidence of Ms S that the funds were advanced by way of a loan and would include the figure of $37,000 as a liability in the asset pool.
The wife
The wife gave evidence and was cross-examined.
Her evidence, like the husband’s evidence, was not free of criticism. It was clearly difficult for her, taking into account the husband’s decision to leave the marriage and then commence a relationship with Ms B, to accept that there had not been some element of planning in the husband’s actions.
Having given evidence that the parties from time to time had to borrow funds from her parents, and had enlisted her parents as registered proprietors on property they had purchased, (which I accept) she submitted that the husband in fact was earning a greater income than that which he declared.
She had difficulty accepting the business valuation and had Mr B provide an alternative value on the basis of a second set of figures. She had difficulty accepting the rise in business debt just prior to separation and insisted on extensive disclosure. The contrast between a family that needed financial support from her parents and the allegation of hidden money did not register with her.
Furthermore, her insistence on complete accuracy from the husband contrasted with her failure to acknowledge receipt post separation of Family Tax Benefit payments and the existence of a loan of some $63,000 (at trial) from her parents which she was repaying at $100 per week.
Valuation of business
There are two issues with respect to the valuation of the business, namely.
a)the allowance of a notional wage for the husband (and I note it is agreed that in the event that I decide that the appropriate wage for the husband is in excess of $75,000 then the business has no goodwill); and
b)an increase in the business debts in the six months from $20,000 in June 2008 to approximately $120,000 in December 2008 when the parties separated (and I note that the parties subsequently agreed the net value of the business taking into account the increased debt with the wife reserving her rights to argue the increase in debt should be attributed to the husband).
(a) Notional wage / goodwill
The parties appointed Mr B as the joint expert to value the business. The husband subsequently instructed Mr C.
Mr B prepared his valuation on the basis of value to the owner. The husband and Mr C were critical of the fact that the valuation did not allow for a notional wage to the owner.
The valuers subsequently conferred and agreed that:
a)the future maintainable earnings were fixed at $75,000;
b)the capitalisation rate was 27.5% (Mr B) and 32.5% (Mr C); and
c)a notional salary should be applied to the husband being $45,000 to $65,000 (Mr B) and $100,000 (Mr C).
It was agreed that if the wage for the husband is greater than $75,000 then the business should be valued on the basis of net tangible assets, that is, the business having no goodwill.
Evidence was provided of the enquiries made by the valuers regarding an appropriate wage.
Mr B conceded that the amount allowed for the notional wage should be higher than the amount paid to the husband’s employee, Mr W, who at the time was paid $64,600 plus overtime.
Mr C’s enquiries suggested the notional wage would be in the vicinity of $100,000 per annum. In considering the evidence of the valuers, the evidence of Mr C is preferred and I would accept that the notional wage to be applied to the husband is in excess of $75,000. I would therefore accept the business should be valued on the basis of net tangible assets.
(b) Business debt / net business value
The wife takes issue with the increase in business debt from June 2008 to December 2008. During the adjournment the parties were able to agree that should the business be valued on the bases of net tangible assets as at 31 December 2008, the value of the business would be a liability of $92,458. The wife however, would not concede the increase in debt was a joint liability.
The evidence would suggest that some of this increase in debt can be attributed to the fact that the parties had not been filing their tax returns and a debt of some $45,000 in respect of tax that had accumulated on income earned by the parties in the course of their relationship had crystallised with the filing of the returns including BAS statements.
A further sum of approximately $7,000 appears to relate to superannuation contributions that should have been paid for the employee of the business, Mr W.
Mr W receives an annual income of $64,600 including superannuation. It appears that the outstanding figure for the superannuation contributions relates to the period of time that the parties were together and receiving income from the business.
The balance sheet for December 2008 prepared by the husband’s accountant did not appear to include all of the items on the June 2008 schedule. In addition, there appeared to be an unexplained rise in some debts including an increase in the amount due and owing on credit cards. This was subsequently explained by the provision of the credit card statements and the figure agreed.
The wife, in her closing submissions, argued that:
a)the husband has not provided an adequate explanation for the cash withdrawals of some $9,700 and personal drawings of some $6,476.37 in the six month period from July to December 2008;
b)the husband was financially reckless with the business funds from July to December 2008; and
c)the list of debtors that owed funds of some $6,119.85 to the business is not accurate. She submits this is a business with a $300,000 turnover and the suggestion that there is less than $7,000 owing at the conclusion of December 2008 does not accord with the usual billings for the business.
The wife seeks findings that:
a)the cash withdrawals are deliberate and reckless;
b)the statement of debtors is not correct; and
c)the business has a real and substantial value.
Whilst the wife does not produce any evidence that I consider supports her claims, the husband’s explanation that the increase in debt is due to an increase in the cost of living and BAS statements not being lodged could have been better.
An examination of the balance sheets and profit and loss statements shows a decrease in the gross sales of the business for that year (2008/2009) of some $17,000. This is offset by a decrease in the cost of purchases of some $20,000 to $30,000. At the end of the day, the profit of the business in fact rises slightly for the financial year.
There is some concern that, at the time of the separation and in the months leading up to it, the husband may well have been unable to operate the business in the usual way.
The husband’s evidence is that school fees had to be paid that year in the sum of $10,000 along with his evidence about the failure to lodge or account for tax returns resulting in an increased debt to the Taxation Department. In addition, the parties took a holiday to Hawaii in October 2008. Whilst his explanation in respect of credit cards and associated debts was not satisfactory quoting, amongst other things, the rise in the cost of living, there was no evidence to support the wife’s submissions.
I do not accept that the husband deliberately increased the level of debt. There is evidence of the bringing to account of the taxation debt in respect of the failure to lodge previous BAS returns amongst other things, there is evidence of the parties being in the midst of a separation, there is evidence which is not disputed that the school fees provided an additional expense in this matter, and that an amount was owing in respect of the superannuation contributions.
The parties had agreed, after considering the supporting documents, to amend the balance sheet to accommodate the wife’s concerns, reducing the amount owing to the ATO to $40,000 and the amount owing to Telstra to $1,614. This meant the agreed adjusted net liability for the business was $92,438.47.
The wife, in reaching this agreement, reserved her right to argue that the business was worth more and that any increase in debt was as a direct result of the husband’s actions and should not be taken into account when considering the asset pool. She addressed this issue in her closing submissions. I have considered this submission and reject it.
I would therefore bring the value of the business to account as a liability in the sum of $92,438.47 being the net value of the business based on the net tangible assets as at December 2008.
The Ford 250 motor vehicle
The parties purchased a red Ford F250 motor vehicle in or about 2006.
The wife’s evidence is that in or about May 2008, the husband was considering trading the vehicle for a new Triton utility. The dealer offered the husband $27,000 trade-in for the vehicle. The debt on the vehicle at the time was $29,000. He did not proceed with the arrangement.
The vehicle was registered in the wife’s name. The loan was in the wife’s name. The parties were in default on the loan. The wife’s evidence is that the husband was offered the opportunity to transfer the vehicle and loan into his name. The wife’s evidence is that she had been charged arrears, fees, dishonour fees and interest penalties. The vehicle was about to be repossessed on the wife’s evidence and she obtained an extension of time from St George Finance.
St George then repossessed the vehicle, obtaining it from the husband’s partner’s home, Ms B. The vehicle was then stored at [omitted] Auctions. The wife says she obtained agreement from St George Finance to collect the vehicle so she could attempt to sell it privately. Her evidence is that advertisements were placed in Horse SA and on an equestrian website. The vehicle was also displayed at [locations omitted]. In August 2009, the vehicle was sold to Mr E, for the sum of $22,000.
The husband’s evidence is that he did not agree to the sale of the vehicle because he needed it for use in his business.
He sought details of where to pay the loan from the wife, however, he was provided with an incorrect account number.
He concedes the vehicle was repossessed by St George Finance.
He concedes the wife listed it for sale in the Trading Post for a price of $34,000.
He also concedes that she proposed to sell the vehicle for $21,000 and subsequently sold it for $22,000.
He notes that the vehicle was subsequently valued by [omitted] Auctions at $36,750. There was no Affidavit supplied by [omitted] Auctions and the valuation is not conceded.
I have already addressed the husband’s argument that the business was in financial difficulties and hence the significant increase in debt should be allowed as at the date of separation.
I therefore have difficulty with the husband’s argument that he was in a position to meet the payment on the Ford 250 motor vehicle and that the parties had the luxury of being able to sell the motor vehicle without the pressure of having to meet the monthly debt.
I note that the wife has not, despite providing a book of some 126 documents to the Court, provided any documentation in respect of the sale of the vehicle. I accept that reasonable efforts were made to sell the motor vehicle. The wife advises that Mr E made payment direct to St George Finance to clear the debt with the balance of proceeds going to the CBA account.
The parties have agreed that the sale price was $22,000 and the debt was $20,000. The equity of $2,000 is therefore brought to account in the asset pool.
Family Tax Benefit
The wife was cross examined on the lump sum Family Tax Benefit for the years 2007 and 2008 that had been received by her in 2009, following the parties’ separation.
The wife was unable to provide any information in the course of cross examination and, in view of the adjournment, directions were made that that information be disclosed.
The amounts were subsequently disclosed and agreed.
The husband seeks to bring to account a Family Tax Benefit for 2009. This is following the parties’ separation and the husband does not have any accurate information in respect of this amount. I am therefore not prepared to include an estimated amount of $5,000 in the matrimonial asset pool.
The asset pool
Taking into account the above, this would mean that the asset pool is as follows:
| ASSETS | WIFE | HUSBAND | VALUE |
| Property Y farm(H & W) | $630,000 | $630,000 | $630,000 |
| [T] (H) | $54,545 | ($92,438) Net (as per draft agreed balance sheet 31/12/08) | ($92,438) |
| Mitsubishi Pajero (W) | $8,500 | $8,500 | $8,500 |
| Farm plant and equipment | $7,189 | NK | Excluded by agreement |
| Hay | $4,500 | Nil | Excluded by agreement |
| 10 sheep | $600 | $400 | Excluded by agreement (refer to mortgage payments) |
| Jewellery (W) (those pieces remaining) | $2,250 | $2,250 | $2,250 |
| Savings & Loans joint account at separation (H says it was a credit card debt) | ($2,033) | ($2,033) | ($2,033) |
| Husband’s business tools and van | $4,770 | Nil (included in business balance sheet) | Agreed (see business value) |
| Furniture at Property T (W) | $220 | $220 | $220 |
| Furniture from farm (W) | $8,500 | $8,500 | $8,500 |
| Furniture from farm (H) | $3,500 | $3,500 | $3,500 |
| Furniture from Property M (H) | $1,360 | $1,360 | $1,360 |
| Ice machine (H) | $275 | $275 | $275 |
| Quad bike and metal (H) | $480 | $480 | $480 |
| Tax refund 2008 (W) | $1,700 | $1,700 | $1,700 |
| Family Tax Benefit (2007) | $3,851 | $3851 | $3,851 |
| Family Tax Benefit (2008) | $5,942 | $5,942 | $5,942 |
| Family Tax Benefit (2009) | E $5,000 | Excluded | |
| Quad bike not presented for valuation (H) | NK | NR | Excluded by agreement |
| Fire-fighting pump and equipment not presented for valuation | NK | NR | Excluded by agreement |
| Portable generator not presented for valuation (H) | NK | NR | Excluded by agreement |
| Wine collection (H) | Ignore | Ignore | Excluded by agreement |
| 20 cattle sold by husband | NK | NR | Excluded by agreement |
| 1 cow sold by husband | $200 | $200 | $200 |
| Cattle sold by wife | $8,303.90 | $8,303.90 | Excluded by agreement |
| Ford F250 motor vehicle (sold by W) | $22,000 | $36,750 (as valued by [omitted] Valuers) | $22,000 |
| Wife’s superannuation - [1] - [2] | $9,400 $15,328 | $24,728 | |
| Husband’s superannuation was $36,941, cashed in to payout mortgage | $27,267.46 | ||
| TOTAL ASSETS | $646,302.46 |
| LIABILITIES | WIFE | HUSBAND | VALUE |
| CBA Property Y mortgage | $414,953 | $414,953 | $414,953 |
| Property Y mortgage interest due 28/8/10 | Excluded by agreement | ||
| Outstanding agent’s advertising costs $5,352 ([1]) $2,256 ([2]) | $7,608 | $7,608 | $7,608 |
| Commission and sale costs for Property Y | $16,500 | NR | Excluded (see below) |
| Debt due to wife’s parents | $37,000 | Nil | $37,000 |
| Wife’s ANZ credit card at separation | $1,500 | $1,500 | $1,500 |
| Wife’s AMEX credit card at separation | $1,709 | $1,709 | $1,709 |
| Husband’s credit card debts at separation | NR | Included in business balance sheet | |
| Wife’s HECS debt at separation | $6,403 | $6,403 | $6,403 |
| Wife’s personal tax debt at separation | $3,894 | $3,894 | $3,894 |
| F250 finance debt | $20,000 | $20,000 | $20,000 |
| Outstanding [Y] Council rates | $2,000 | $2,000 | $2,000 |
| TOTAL LIABILITIES | $495,067 | ||
| NET ASSETS | $151,235.46 |
Contributions
The parties commenced cohabiting in October 1998.
The wife’s evidence is that, at that time she had a property at [P] and was employed with an annual income of $36,000 plus bonuses.
The husband was self employed operating a business known as [C].
The husband had a utility and a van each worth $4,000, his business known as [C] for which he attributes no value, superannuation of approximately $10,000, furniture worth $5,000 and tools worth approximately $10,000.
No evidence is provided to support the values attributed by the husband to those assets.
The wife concedes that, in addition to his business, the husband had an old panel van worth approximately $1,000 and some clothing.
The [P] property was sold in September 1998 and a property was purchased at Property S for the sum of $125,000 in the wife’s name.
The Property S property was sold in October 1999 and the net proceeds of sale used to purchase the parties’ property at Property C in Brisbane.
In 1999 the husband was declared bankrupt. His evidence was that the amount owing as at the date of the bankruptcy was $4,500 being a debt of $12,000 for which he had made payments to reduce that amount.
The husband was discharged from bankruptcy in or about 2004.
In the meantime, the parties moved from South Australia to Brisbane and then to Cairns and then to Melbourne following the husband’s employment.
In September 2002 they moved back to Adelaide where the husband obtained employment with [omitted]. His salary at that time was $65,000 per annum plus superannuation and the use of a motor vehicle.
In the course of their moving the parties sold the Property S property receiving net proceeds of $30,000. On the wife’s evidence those proceeds were used to purchase their property in Property C (which was registered in the joint names of the wife and the maternal grandmother). The maternal grandmother also gave permission for her name to be included on the mortgage for the property. Whilst this is not mentioned by the husband in his trial documents, it was subsequently conceded by him in the course of cross examination.
On moving to Cairns approximately 12 months later, the parties sold the Brisbane property and used the proceeds of sale to purchase a property in Cairns.
They resided there for approximately 12 months until the husband moved to Melbourne. They subsequently sold the property in Cairns, initially renting it out prior to the husband moving back to Brisbane for further employment. On the sale of the Cairns property, the proceeds of sale were used to purchase a property at [G] in Brisbane in the joint names of the wife and maternal grandparents. The maternal grandparents again assisted by becoming jointly liable under the mortgage for the property and lent the parties $4,000 to assist in the purchase of the property.
The parties returned to Adelaide in 2003/2004 selling the [G] property and applying the net proceeds to the purchase of property at Property T.
The Property T property was subsequently sold in March 2007 and the net proceeds applied to the purchase of the Property Y property with the assistance of a loan of $9,000 from the wife’s parents.
In or about late March 2008, the husband was served with a bankruptcy notice in the parties’ names regarding an outstanding debt to [omitted] Plumbing. This has been addressed when considering the evidence of Ms S. The parties lent a further $9,000 from the wife’s parents to repay the debt.
In April 2008 the parties borrowed a further $15,000 from the wife’s parents to complete kitchen renovations.
The monies were advanced on the basis that the parties would put Property Y on the market for sale in the spring.
The parties separated in December 2008.
There then follows a history up to and including the date of trial whereby the parties make allegation and counter allegation against the other in respect of their failure to meet their financial commitments and each accuses the other of taking and/or selling matrimonial assets and selling them for their own advantage.
Some of these allegations have been addressed and it is sufficient to say that a significant amount of time was spent on whether or not the parties had, for example, sold items such as cattle or sheep or hay, or had purloined items of property for their own use.
Taking into account the eventual agreement of the parties in respect of the matrimonial asset pool and also on the basis of my assessment of the evidence, I see little point in pursuing the allegations of each of the parties.
This is a relationship of some 11 years.
It is reasonable to find that the equity in the wife’s property provided the parties with the ability to commence purchasing the residences in which they lived.
The parties, in following the husband’s employment in the early years, frequently changed address moving interstate, taking the young family with them.
The assistance provided by the wife’s parents was significant, including their willingness to be a party to a mortgage and to have their names put on the Title during the husband’s bankruptcy.
In addition, the wife’s parents lending funds on an interest free basis no doubt provided assistance to the parties and can be considered a contribution to the assets. Whilst there is no evidence on this issue, the question does arise as to what the asset pool would have been without the intervention of the wife’s parents.
The husband, to his credit, remained in full time employment throughout the relationship and the income received by him provided a significant contribution to the acquisition, conservation and improvement of the parties’ assets.
The wife resumed full time work in November 2008. Whilst she was not working, she was free to contribute to the welfare of the family.
Her contributions, however, need to be offset against the contributions made by the parties subsequent to the date of separation.
The wife’s failure to contribute even a nominal rental figure to the roof over her head, whilst she occupied Property Y and was working on a full time basis, is something that affects my consideration of this matter.
This is not to excuse the husband who was also obliged to contribute to one half of the mortgage payments and clearly failed to do so.
Furthermore, the husband’s failure to contribute to the mortgage payments as he was undertaking a financial venture with his partner, reflects poorly upon him.
Whilst his actions in finally discharging the mortgage preserved some of the equity in this small pool, there remain significant questions as to how the debt was allowed to increase. His failure to properly explain the arrangements between himself and Ms B, particularly when Ms B was not engaged in employment, does not reflect well upon the husband’s evidence. The refinancing of the mortgage however meant that some equity was preserved, and that should be brought to account.
In the circumstances, taking into account the factors set out above including the initial equity of the wife, the assistance from the wife’s parents, the husband’s bankruptcy, the parties’ subsequent contributions and lack of contributions to the mortgage following separation, and the husband’s refinancing of the mortgage debt, I would find that the contributions of the parties should be assessed on the basis of 50% to the wife and 50% to the husband.
Financial resources and needs
The wife was born [in] 1972 and is aged 40 this year. The husband was born [in] 1974 and is aged 38 this year.
The wife gave evidence that she is currently [occupation omitted], five days per week which has the prospect of being reduced to four days per week once a suitable person is found for a position in her office that will occupy one out of the five days. Her gross income on the basis of a five day week is $60,000.
The husband remains self employed in [T]. He has remarried and has made his wife, Ms B, a partner in the business. His income, whilst more than that of the wife, would be able to be legitimately split with Ms B.
Neither party suggests that there are any health issues that would impact on their ability to obtain appropriate gainful employment.
Ms B is the registered proprietor of a property in [L]. That property has either been sold or will be sold and the funds from the proceeds of sale used to reduce the debt on Property Y.
This would significantly reduce the debt currently secured against that property.
The wife is currently residing with her parents, and submits she is unable to finance the purchase of another property. The husband is in occupation at Property Y with his wife Ms B.
The wife points out that, following separation, the husband has been able to, amongst other things, obtain finance from Eastwood Finance to enable him to discharge the Commonwealth Bank mortgage and lease premises in [O] for his business (although she questions its use).
The wife submits that the property is primarily rented as a beach house. She notes the husband is spending 9-10 days per fortnight at the [O] property.
Either way, the husband in obtaining this property, has shown an ability to service the rent and outgoings on the property for the foreseeable future.
The wife goes on, however, to express concern in respect of the husband’s debt to the Australian Taxation Office noting it has increased by 135% since separation. She submits this is indicative of the husband’s reckless financial behaviour.
The husband, in addition to being responsible for the shared care of his three children, now has a wife, Ms B, who is drawing funds from the business in return for the bookkeeping work she undertakes and two children from his current relationship, namely [name omitted] born [in] 2010 and [name omitted] born [in] 2011.
His commitments to supporting himself, his new wife, and the children of that relationship in addition to the children of this relationship are significant.
Neither party would appear to be eligible for a pension allowance or benefit.
Neither party makes strong submissions regarding the standard of living that is, in all the circumstances, reasonable.
The wife does submit that she has no funds and has been unable to establish an alternative residence. She is currently residing with her parents.
There is some substance to her submission that she should receive some payment that would enable her to move on. What constitutes a reasonable standard of living must be set against the context of how the parties lived prior to separation and their current capacity to fund that standard of living.
This is a matter where there has been unnecessarily lengthy litigation over what has amounted to a relatively small asset pool.
Neither party can be proud of their actions in the course of this litigation and each party must bear the consequences of the debts arising from that litigation and the effect on their respective standards of living.
There are no submissions regarding the affect of any proposed order on the ability of a creditor of the party to recover the creditor’s debt. The husband has been clear, since July 2010, that he intends to utilise the capital received from the sale of Ms B’s property to reduce the debt incurred as a result of his acquisition of Property Y.
The husband should be well able to meet his commitments once that transaction has resolved, if it has not already done so.
Both parties are working on a full time basis and neither party suggests that they should receive financial assistance to enable them to continue in their role as a parent.
I have referred to the husband’s cohabiting with Ms B, his wife. The last Financial Statement filed by the husband was received by the Court on 13 July 2010.
In that Statement, the husband shows that Ms B received $480 per week for 2009.
It does not provide any information in respect of her income at that point in time nor is any further evidence provided save and except that she is now a partner in the business and she is drawing from the funds received from the business.
If there is no external source of income for either Ms B or the husband, it is reasonable to assume that Ms B is relying on the income received through the partnership to support herself and to service any commitment she had toward the [L] property, subsequent to her giving up her employment following her pregnancy with the parties’ two children.
The child support being paid by the parties, together with the subject of the husband’s income, is somewhat controversial.
The position has been made less clear with the joining of Ms B as a partner in the husband’s business.
I am unable, on the evidence before me, to make any finding as to whether or not the husband should be contributing more by way of child support, particularly in view of the shared care arrangements for the children.
I note that the wife in her submissions states that she does not receive any child support. She further advises the Court that on 28 October 2011 a determination was made by the Child Support Agency that neither party is required to provide any child support to the other party backdated to April 2011. This determination apparently overruled a previous assessment that she was to provide child support in the sum of $248.75 per month to the husband due to the husband’s declared taxable income of $13,000. She submits the determination remains in place until October 2012. Her submission is not challenged and I am able to draw the conclusion that neither party at present is paying child support to the other.
The parties are sharing the care of the children and there is nothing to suggest that their health impacts on their ability to obtain appropriate gainful employment. The evidence would suggest that their incomes are roughly similar and that the husband has taken on significant commitments with Ms B and the two children from this current relationship in addition to those commitments to the relationship the subject of these proceedings.
The husband has been able to refinance the mortgage on Property Y and, in addition, has taken on the commitment of a property at [O].
His capacity to obtain finance and service the loans would suggest his financial circumstances may be superior to those of the wife, however, his commitments to his new wife, his children he shares care with, and his children from this relationship would lead me to conclude no further adjustment should be made.
In the circumstances, I would make no adjustment for the financial resources and needs of the parties.
Just and equitable
Following the findings set out in these Reasons, I have determined that the net equity in the matrimonial asset pool is $151,235.46.
The orders I would make would allow for the wife to receive 50% of that amount or assets with a net value of $75,617.73.
The wife, following the orders made, will have assets of $57,691 with liabilities of $50,506 providing her with a net equity of $7,185. The husband would therefore need to pay the wife an additional $68,432.73 rounded up to $68,433, meaning the wife would have :
ASSETS
Amount due from husband
$68,433
Mitsubishi Pajero (W)
$8,500
Jewellery (W) (those pieces remaining)
$2,250
Furniture at Property T (W)
$220
Furniture from farm
$8,500
Tax refund 2008 (W)
$1,700
Family Tax Benefit (2007)
$3,851
Family Tax Benefit (2008)
$5,942
Ford F250 net proceeds
$2,000
Wife’s superannuation
- [1] $9,400
- [2] $15,328
$24,728
TOTAL ASSETS
$126,124
LIABILITIES
Wife’s ANZ credit card at separation
$1,500
Wife’s AMEX credit card at separation
$1,709
Wife’s HECS debt at separation
$6,403
Wife’s personal tax debt at separation
$3,894
Debt to parents (joint)
$37,000
TOTAL LIABILITIES
$50,506
NET EQUITY
$75,618
The husband will be retaining assets with a gross value of $567,611.46 with liabilities of $424,594 leaving with him assets with a net equity of $143,017 less the amount of $68,433 due to the wife as follows:
ASSETS
Property Y farm(H & W)
$630,000
[T] (H)
($92,438)
Savings & Loans joint account at separation (H says it was a credit card debt)
($2,033)
Furniture from farm (H)
$3,500
Furniture from Property M (H)
$1,360
Ice machine (H)
$275
Quad bike and metal (H)
$480
1 cow sold by husband
$200
Husband’s superannuation cashed in
$27,267.46
TOTAL ASSETS
$568,611.46
LIABILITIES
Property Y mortgage payout
$414,953
Outstanding agent’s advertising costs
- $5,352 ([1])
- $2,256 ([2])
$7,608
Debt to wife
$68,433
Outstanding rates [Y]
$2,000
Savings & Loans credit card
$2,033
TOTAL LIABILITIES
$492,994.00
NET EQUITY
$75,617.46
The husband advised that in July 2010 Ms B would be selling her property in [L] and the funds would be used to reduce the debt secured against Property Y.
The last advice received was that the property was on the market for sale.
It is reasonable to assume that either the property has been sold or is in the process of being sold.
The husband would have the capacity to pay the wife out. However, it is uncertain whether that payment could occur within 30 days or whether the husband would require further time.
The parties have been engaged in litigation for some years and the matter should proceed to a conclusion without the need for further appearances.
In the circumstances, I would adopt a cautious approach to the payment to the wife and allow 90 days for the husband to make such payment.
Having regard to the above, I do not consider there is a need to make any further adjustment to the division of the matrimonial assets.
I therefore make orders as set out at the commencement of these Reasons.
I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of Cole FM
Date: 27 March 2012
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