SARAF & SARAF
[2020] FCCA 442
•3 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARAF & SARAF | [2020] FCCA 442 |
| Catchwords: FAMILY LAW – Property – Consideration of Notional Add Backs – Consideration of Loans. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Cases cited: Stanford [2012] HCA 52 Hickey & Hickey & Commonwealth (2003) FLC 93-143, 30 FamLR 355 AJO & GRO (2005) 33 Fam LR 134, (2005) FLC 93-218 |
| Applicant: | MR SARAF |
| Respondent: | MS SARAF |
| File Number: | BRC 12926 of 2017 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 3 and 4 December 2019 |
| Date of Last Submission: | 4 December 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 3 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Cornerstone Law Offices |
| Counsel for the Respondent: | Ms Wilson |
| Solicitors for the Respondent: | Stephens & Tozer Solicitors |
ORDERS
That the net assets, liabilities, superannuation, and financial resources of the parties be divided 45% to the Applicant husband ("the husband") and 55% to the Respondent wife ("the wife").
The Saraf Family Business, B Street, Suburb C "the business"
That within 14 days each party do all acts and things necessary to cause the business to transfer the Motor Vehicle 1 to the wife and the Motor Vehicle 2 to the husband.
That the husband be appointed sole trustee for the sale of the business.
That as the sole trustee appointed to sell the business, the husband shall:
(a)Notify the wife in writing of any offers received for the sale of the business;
(b)Provide the wife with the signed contract for sale of the business; and
(c)Not sell the business for less than $663,934.
That within seven (7) days from when the Business Sale Contract becomes unconditional, the wife shall do all such acts and things and sign all necessary documents so as to:
(a)resign as director of D Pty Ltd at the husband's cost;
(b)be removed as beneficiary of the Saraf Trust at the husband's cost.
That the proceeds of sale of the business shall be applied pursuant to Order 4 of the Orders made on 30 May 2018, and in addition, the proceeds of sale shall be applied to pay for:
(a)Payment to Cornerstone Law Offices legal fees $20,319;
(b)Payment to Mr H $202,639;
(c)The cost of the Accountant's work for the next round of tax after sale of business and bills relating to BAS until sale of business;
(d)Capital gains tax in accordance with the orders below; and
(e)The balance of the net proceeds of sale shall be divided between the husband and the wife so that the husband receives 45% and the wife receives 55% of the overall net asset pool including superannuation and taking into consideration the value of what each of them is otherwise retaining as determined by judgment delivered this day.
That any payment to be made to the wife shall be paid as directed by the wife and any payment to be made to the husband shall be paid as directed by the husband.
Capital Gains Tax
That upon the business sale contract becoming unconditional, the parties jointly appoint an Accountant to estimate the Capital Gains Tax payable, with the husband to provide a panel of three (3) accountants to the wife and the wife to nominate one (1) from the panel within seven (7) days of receiving the list.
That the parties shall comply with any reasonable written request from the accountant to provide information and documents necessary to complete the assessment.
The costs of the work completed by the accountant are to be shared equally between the parties.
The amount of capital gains tax estimated by the accountant shall be set aside and held in the Trust Account of Cornerstone Law Offices on behalf of the parties until final lodgement and payment to the Australian Taxation Office.
The funds held on behalf of the parties by Cornerstone Law Offices are not to be released without the joint written consent of both parties.
If the Australian Taxation Office deems no tax or less tax is payable, then the funds held in trust or any surplus are to be released to the parties as follows:
(a)45% to the husband as directed in writing by him; and
(b)55% to the wife as directed in writing by her.
If the Australian Taxation Office deems more tax is payable, then the parties shall contribute equally to such shortfall.
Refinance of mortgage and transfer of title to wife in respect of F Street, Suburb G, Qld
That once the business is sold, and provided that there are sufficient funds to pay the husband 45% of the overall net asset pool including superannuation and taking into consideration the value of what he otherwise retains as determined by judgment delivered this day:
(a)the parties do all such acts and things and sign all necessary documents so as to transfer to the wife all of the husband's right, title and interest in the former matrimonial home situated at F Street, Suburb G, Queensland, more properly described as Lot … on title reference … ("the real property");
(b)That contemporaneously with the transfer set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the jointly held mortgage secured over the real property being mortgage number …07 and the wife do all things necessary to obtain finance to secure the mortgage into her sole name.
Sale of F Street, Suburb G, Qld
If upon the sale of the business, there are insufficient funds to pay the husband 45% of the overall net pool of assets and liabilities including superannuation and taking into consideration the value of what he otherwise retains as determined by judgment delivered this day, or if the wife is unable to refinance the mortgage into her sole name in accordance with these orders, then the property at F Street, Suburb G shall be listed for sale forthwith.
The parties do all such acts and things and sign all necessary documents and pay all such monies (including upfront marketing costs) equally so as to effect the sale of the real property.
The real property shall be immediately listed for sale by private treaty with a real estate agent as agreed in writing between the parties, with the husband to provide a panel of three (3) agents to the wife, and the wife to nominate one (1) agent from the panel within 48 hours of receiving the panel.
If the wife fails to nominate an agent within 48 hours, the husband is at liberty to nominate an agent so that the property can be listed on the market for sale forthwith.
The listing price shall be as agreed in writing between the parties and failing agreement as nominated by the listing agent but at a price not less than $410,000.
The parties are to cooperate in every way with the listing agent in relation to the marketing of the real property for sale, including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the real property is clean, neat and in good order at the time of inspection by any prospective buyer.
In the event of a contract for the sale of the real property not having been entered into within thirty (30) days from the date of the listing for sale then the parties do all things and sign all necessary documents to procure a sale of the real property by way of public auction.
The listing agent shall nominate the auctioneer with the costs of the auctioneer to be shared equally between the parties.
The reserve price shall be as agreed to in writing by the parties at least seven (7) days prior to the date of auction, failing which the reserve price shall be as recommended by the listing agent.
Upon the sale of the real property, the proceeds of the sale shall be disbursed as follows:
(a)In payment of the mortgage secured over the real property;
(b)In payment of real estate agent's commission, auction and advertising costs (if any);
(c)the legal costs of sale;
(d)The balance shall be divided between the husband and wife so that the husband receives 45% and the wife receives 55% of the overall net pool of assets and liabilities including superannuation and taking into consideration the value of what each of them is otherwise retaining as determined by judgment delivered this day.
That any payment to be made to the wife shall be paid as directed by the wife and any payment to be made to the husband shall be paid as directed by the husband.
The Husband to retain
Except as otherwise provided for in these Orders, the husband shall retain as his absolutely property, with the wife to relinquish and where necessary release, transfer and/or assign to the husband all right, title and claim, if any, to and in:
(a)All funds held in bank accounts in the husband's name;
(b)Any motor vehicle in his possession;
(c)Chattels in his possession;
(d)Personal possessions in his possession; and
(e)Interest in superannuation funds in his name.
The Wife to retain
Except as otherwise provided for in these Orders, the wife shall forthwith retain as her absolute property, with the husband to relinquish and where necessary release, transfer and/or assign to the wife all right, title and claim, if any, to and in:
(a)All funds held in bank accounts in the wife's name;
(b)Any motor vehicle in her possession;
(c)Chattels in her possession;
(d)Personal possessions;
(e)Interest in superannuation funds in her name.
Other Orders
Except as otherwise provided for in these Orders, the husband shall indemnify the wife and hold her indemnified in relation to any and all liabilities of the husband.
Except as otherwise provided for in these Orders, the wife shall indemnify the husband and hold him indemnified in relation to any and all liabilities of the wife.
Each party shall sign all necessary documents and do all necessary things in order to give effect to the terms of these Orders.
If either party refuses or neglects to comply with a provision of these Orders within seven days of a written request to do so by the other party, then a Registrar of the Federal Circuit Court of Australia be hereby appointed, pursuant to Section 106A of the Family Law Act 1975 (Cth), to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to these Orders.
That the parties have liberty to apply in relation to the implementation of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Saraf & Saraf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12926 of 2017
| MR SARAF |
Applicant
And
| MS SARAF |
Respondent
REASONS FOR JUDGMENT
Applications
The applicant husband, Mr Saraf, and the respondent wife, Ms Saraf, have been unable to reach agreement as to their property settlement following the breakdown of their marriage. The Court has been asked to make a property adjustment order. In these reasons for judgment I will refer to the parties as the husband and the wife even though they are divorced. I mean no disrespect in doing so.
By way of Initiating Application the husband commenced parenting proceedings on 5 December 2017. In her Response filed 2 February 2018 the wife introduced property proceedings. The parenting proceedings were resolved by way of final consent orders made on 28 November 2018 which provide for the parties’ two children, now aged 17 and 15, to live with the wife. No provision was made for the children to spend time with the husband.
The outcome desired by the husband differed depending on my finding as to whether an outstanding New Zealand student loan should be included in the pool of assets and liabilities. He argued that if the loan was included there should be an equal distribution between the parties. However, if I was to exclude it from the pool but take it into account within the s.75(2) considerations, he sought a 55%/45% division in the wife’s favour. More specifically, he sought to be appointed the trustee for sale of the parties’ business, and after the associated business debts being paid the balance of the proceeds of sale to be distributed to achieve the percentage division. Upon the business being sold and there being sufficient funds to pay the husband’s percentage, he sought to transfer the former marital home to the wife and for her to refinance the mortgage into her sole name. In the event there are insufficient funds to pay the husband’s percentage, or if the wife is unable to refinance the mortgage into her sole name, he sought that the former matrimonial home be sold and the sale proceeds divided. The husband also sought that each party retain the bank accounts, motor vehicles, chattels, personal possessions and superannuation interests in their respective possession.
The wife argued that the orders sought by her would achieve an overall 60%/40% division in her favour. In her minute of order dated 3 December, she sought the transfer of the former matrimonial home into her name with her refinancing the mortgage over it and receiving a $170,000 cash payment from the husband. She also sought that her interest in the parties’ business be transferred to the husband and for the husband to be solely responsible for the business loans with him to indemnify her for any liability arising from existing and future creditors and all Capital Gains Tax payable and she would contemporaneously be removed or resign from the business’ operating company and trust. However in the written submissions handed up 4 December 2019 the wife sought that the former matrimonial home be transferred to her and she refinance the mortgage; the business be sold and the proceeds of sale divided 60%/40% in her favour after paying business debts and that a $23,012 superannuation splitting order from the husband’s superannuation be made in her favour.
The significant issues that dominate this case were: whether a student loan debt owed by the husband should be included in the pool of assets and liabilities or taken into account under s.75(2); the value of the student loan debt; the extent of a loan made to the parties by the husband’s parents; whether legal costs incurred in relation to Fair Work proceedings should be included in the pool; whether amounts withdrawn after separation should be treated as notional add backs; and the overall division of the property pool.
Evidence
In support of his case the husband relied on:
a)His Amended Reply filed 4 November 2019;
b)His Affidavit filed 4 November 2019;
c)His Financial Statement filed 4 November 2019;
d)The Affidavit of his father, Mr H filed 21 August 2018; and
e)His Outline of Case filed 26 November 2019.
The wife relied on:
a)Her Response filed 2 February 2018;
b)A document entitled Final Orders Sought filed by leave 3 December 2019;
c)Her Affidavit filed by leave 3 December 2019;
d)Her Financial Statement filed 2 February 2018;
e)The Affidavit of her solicitor, Ms J, filed 2 December 2019;
f)Her Outline of Case document filed by leave 3 December 2019; and
g)Her written submissions tendered 4 December 2019.
A number of documents were also tendered into evidence[1] including the wife’s Superannuation Information Request Form 6 that was forwarded to my Chambers on 17 December 2019, two weeks after reserving my decision. The husband did not object to the court admitting this document and it became Exhibit W3.
[1] Exhibit C1 – Joint Assets Schedule as at 04.12.2019
Each of the parties and the husband’s father were cross-examined. In determining this matter, I have had regard to all of the written evidence referred to above along with the oral evidence given. I have also considered the submissions made in support of the cases advanced at trial although these do not form part of the evidence. In order to avoid repetition and limit the length of this judgment, I will not repeat all of the evidence of the parties but refer to the evidence that is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[2]
[2] Section 140 Evidence Act 1995
Prior to considering the evidence however it is important for me to address issues of credit. Whilst both parties presented as honest witnesses, I found the husband to be a better historian than the wife. At times her evidence was inconsistent and I came to the conclusion that her recollections were clouded by the dispute between them. I was also concerned that the wife had not made full and frank disclosure during the proceedings. She conceded that fact during cross-examination but attempted to explain that she did not think she needed to provide post-separation documents. I did not accept her explanation given she had been wanting the husband to provide documents for transactions that occurred after the parties separated. Where their evidence differed I preferred the evidence of the husband.
I found the husband’s father to be an honest and forthright witness and readily accepted his evidence.
Background
The husband is 48 years of age having been born in Country K in 1971. Although a professional, at the time of the hearing he worked full time in the parties’ business franchise located in Suburb C and resided in rented accommodation.
The wife was born on in 1969 in Country K and is therefore 50. She is employed as a public servant at Employer L and has been in their employ since 2019. She resides in the former matrimonial home with the two children.
The parties met 2001 when they were living in New Zealand and the following year they relocated to Australia. On the material the parties differed as to the date of their marriage with the husband saying it was in 2002 whereas the wife attested it was in 2001. This discrepancy was not canvassed at the hearing and given the significant length of their relationship I am satisfied that a one year discrepancy does not impact on my decision. There are two children of the relationship, 17 year old X and Y who is 15 years of age.
In 2003 the parties purchased from the husband’s parents their first home together at M Street, Suburb G. Three years later, using the equity in that home, they purchased another home in F Street, Suburb G. The M Street home was sold in 2008 and the parties then purchased a franchise in Brisbane.
The parties separated in April 2017 and a divorce order was made on 9 February 2019. Neither party has re-partnered. The children live with the mother pursuant to the consent orders made November 2018. They do not spend time with the father.
Legal Approach
In determining property proceedings the court is firstly required to identify according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property that is available for distribution between them. It is then necessary to determine whether it is just and equitable to make an order altering the parties’ interests in the property. If so satisfied the court must then consider the contributions made by each of them under the various s.79(4) considerations before looking at their future needs by reference to the s.75(2) factors. [3]
[3] S.79(2) & (4), Stanford (2012) HCA 52. See Hickey & Hickey & Commonwealth (2003) FLC 93-143, 30 FamLR 355 for approach prior to the High Court decision in Stanford
The property of the parties
At the end of the first day of the hearing I requested the parties to prepare a joint table of assets and liabilities. The document, which became Exhibit C1, set out the ownership of the various items of property as well as the values ascribed by each party along with notes addressing the source of the ascribed value or the position of the parties for disputed items. This document is reproduced below.
| ASSETS | ||||||
| DESCRIPTION | OWNERSHIP | WIFE VALUE | HUSBAND VALUE | COMMENT/ | ||
| 1. | Property - F Street, Suburb G | Joint | 410,000 | 410,000 | Real Estate Agent Valuation dated 16.10.2019 | |
| 2. | Franchise Business: Assets: a. Motor Vehicle 2 ($26,170) b. Motor Vehicle 1 ($15,660) c. Cash in bank ($52,620) Liabilities d. Hire purchase $25,299 e. Hire purchase $25,850 f. ANZ Business loan $127,849 g. Debt to Mr H $202,639 | Saraf Trust | 663,943 | 663,943 | Valuation dated 22.06.2018 g. debt to Mr H – wife says $140,000 and disputes the interest in the sum of $62,639 | |
| 3. | Increase in equity in the business since valuation report as a result of the decrease in the business loan from $127,849 to $74,710 as at 14.10.2019) | Saraf Trust | 53,139 | 53,139 | ||
| 4. | Business – Business N | Saraf Trust | 25,000 | NIL | Husband says not trading Wife disputes and says refer to her Affidavit filed on 3.12.2019 with leave at paragraphs 127 to 129 | |
| 5. | Cash - ANZ Acc #...52 | Wife | 985 | 985 | as at 3.12.2019 | |
| 6. | Cash - ANZ Acc #...76 | Wife | 12,298 | 12,298 | as at 14.6.2019 | |
| 7. | Cash – CBA Acc #...31 | Husband | NK | 138 | Husband says: as at 31.10.2019 as per disclosure sent on 1.11.2019 Wife disputes and says no disclosure | |
| 8. | Cash – CBA Acc #...23 | Husband | NK | 435 | Husband says: as at 31.10.2019 as per disclosure sent on 1.11.2019 Wife disputes and says no disclosure | |
| 9. | Cash – ANZ Acc #...36 | Husband | 3,842 | 3,842 | Husband says: as at 02.10.2019 as per disclosure 1.11.2019 Wife disputes and says no disclosure | |
| 10. | Cash – new bank account opened post-separation with O Bank #...13 | Wife | 10,000 | 10,000 | As per oral evidence from wife on 3.12.2019 | |
| 11. | Chattels in wife’s possession | Joint | 5,000 | 5,000 | ||
| 12. | Chattels in husband’s possession | Husband | 5,000 | 500 | ||
| TOTAL ASSETS | $1,189,207 | $1,160,280 | ||||
| LIABILITIES | ||||||
| 13. | ANZ Mortgage - Acc No. …22 (home loan) | Joint | 201,670 | 201,670 | As at 3.12.2019 | |
| 14. | ANZ Mortgage – Acc no …19 (business loan) ($74,710 as at 14.10.2019) $127,849 taken into account by the valuation report | Joint | - | - | Increase in equity in the business since valuation report as a result of the decrease in the business loan from $127,849 to $74,710 as at 14.10.2019 reflected as an asset in item 3 above | |
| 15. | Debt to Mr H $202,639 (as at 30.06.2018) $202,639 taken into account by the valuation report | Joint | - | - | Wife accepts $140,000 debt but disputes the interest component | |
| 16. | Fair Works Matter - FCCOA Order | Saraf Trust | 160,650 | 160,650 | Order 1 of Orders made by Judge Vasta 11.12.2017 (amended 19.12.2017); Order 2(f) of Orders made by Judge Cassidy 30.05.2018 | |
| 17. | Fair Works Matter – FCCOA Order | Husband | 32,130 | 32,130 | Order 2 of Orders made by Judge Vasta 11.12.2017 (amended 19.12.2017); Order 2(f) of Orders made by Judge Cassidy 30.05.2018 | |
| 18. | Fair Works Matter – FCCOA Order (costs) | Saraf Trust | 2,748 | Husband says: Order 8 of Orders made by Judge Vasta 11.12.2017 (amended 19.12.2017); and Order 2(g) of Orders made by Judge Cassidy 30.05.2018 Wife says husband’s sole debt. | ||
| 19. | Aitken Legal re Fair Works matter | Saraf Trust | 2,094 | 2,094 | Order 2(g) of Orders made by Judge Cassidy 30.05.2018 | |
| 20. | Cornerstone Law Offices (“CLO) re Fair Works Matter | Saraf Trust | 20,319 | 20,319 | CLO Invoice 1769 dated 22.05.2018, and disclosed to Wife 18.06.2018 | |
| 21. | Student Loan - Inland Revenue NZ | Husband | $NIL | 99,215 | Husband says: Email correspondence from Inland Revenue disclosed to Wife 27.11.2019; Wife says refer to husband’s affidavit filed 4.11.2019 that the debt was $19,754. Wife disputes the inclusion of any student loan as a as a joint matrimonial debt on the basis that it was the husband’s pre-relationship debt. | |
| 22. | Capital Gains Tax implications from sale of business | Saraf Trust | TBD | TBD | Wife disputes | |
| 23. | Accountant Debt | Joint | 8,155 | 8,155 | as at 4.11.2019 | |
| 24. | Tax liability – BAS | Joint | 196,572 | Husband says as at 4.11.2019 – see annexure S16 on page 173 of Husband’s affidavit filed 4.11.19. Wife disputes saying ATO source documentation required | ||
| TOTAL LIABILITIES | $425,018 | $723,553 | ||||
| NET ASSETS EXCLUDING SUPERANNUATION | $764,189 | $436,727 | ||||
| SUPERANNUATION | ||||||
| Super Fund E (previously Super Fund P) | Wife | 15,479 | 15,479 | As at 04.11.2019 | ||
| Super Fund Q | Husband | 63,131 | 63,131 | As at 04.11.2019 | ||
| TOTAL SUPERANNUATION | 78,610 | 78,610 | ||||
| NET ASSETS INCLUDING SUPERANNUATION | $842,799 | $515,337 | ||||
| ADDBACKS | ||||||
| Addback cash withdrawals by wife since separation | Wife | 80,000 | Withdrawn from Wife’s CBA Account #...37 on 05.07.2017; Wife says funds belong to her sister. | |||
| TOTAL ADDBACKS | $80,000 | |||||
| NET ASSETS INCLUDING SUPERANNUATION AND ADDBACKS | $842,799 | $595,337 | ||||
During closing submissions counsel for the wife sought to tender various documents which had not been previously disclosed, all but two of which were objected to by counsel for the husband. I did not allow the tender of the documents that were objected to. The parties agreed that the property pool should be adjusted to reflect the late disclosure, namely an add back for the wife having paid $4,400 to forensic accountants R Accountants and $13,896.55 on her legal fees and that the current balance for ANZ account #...52 was $1,647, not $985 as recorded in exhibit C1.
I will address each dispute with respect to the specific item or notional addback. All other assets and liabilities not discussed below can be taken as agreed by the parties and accepted by me.
The business
The parties are the directors of the D Pty Ltd (“D Pty Ltd”) which is the corporate trustee for the Saraf Trust under which they operate the Saraf Family Business, Suburb C franchise.
Loan from the husband’s parents
The parties did not have the full purchase price for the Saraf Family Business franchise so they asked the husband’s parents to fund the shortfall by way of a loan to enable them to purchase the business. The husband’s parents increased their own mortgage by borrowing $140,378.94 against their home loan and deposited $140,000 into the Saraf Trust account on 27 August 2008. The parties purchased the franchise on 7 October 2008 for $320,000 using the proceeds of sale of their first home and the $140,000 loan from the husband’s parents.
Although there was no dispute that the parties borrowed $140,000 from the husband’s parents, the wife disputed the husband’s claim that this loan required them to pay interest on it. The husband annexed to his trial affidavit a copy of a loan agreement which sets out that the principal and interest is to be repaid. The loan agreement is dated 16 September 2008 and was signed by the husband’s father and the husband and was witnessed by Mr S, the husband’s brother who is also the parties’ accountant. Neither the husband’s mother, who died in 2017, nor the wife were signatories to this loan. There was no dispute however that the loan was made by both of the husband’s parents to both of the parties.
D Pty Ltd was the named borrower and despite both parties being directors of the company, the agreement only made provision for the husband’s signature. Similarly, only the husband was the named guarantor. The wife gave evidence that she was not aware of the existence of this loan document prior to mediation in these proceedings. Despite my reservations in accepting the wife’s evidence, I do accept her evidence in that regard as I am satisfied that the husband entered into this written agreement with his father alone. Although I am satisfied the wife played an active role in the business prior to separation, there were occasions when some activities were conducted solely by the husband. Having said that, I do not accept the wife was kept in the dark in relation to the terms of the loan even though she was not a signatory to the written agreement. She was actively involved in the business and would have been aware of the terms.
Mr Saraf senior, who impressed as an honest witness, gave evidence that his intention in lending the money was to receive back not just the capital advanced but also interest. The parties had previously borrowed money from the husband’s father by way of vendor finance in the sum of $30,000 in their purchase of their M Street home. There was no dispute that that loan was repaid with interest upon the sale of the property in 2008. When I take into account the husband’s parents extended their mortgage to make the advance to the parties and thereby incurred interest themselves and that an earlier loan had been repaid with interest, I am satisfied that it was the intention of the parties to repay the loan with interest.
The business valuation obtained by the parties valued the loan repayable to the husband’s parents at $202,639 being inclusive of interest in the amount of $62,639. Given my finding in this regard I will accept the valuation evidence and find that the amount owing to the husband’s father is $202,639. This sum was incorporated into the value of the business.
Proposed sale of the business
Pursuant to consent orders made 30 May 2018 the business was to be listed for sale at an agreed price and failing agreement, for not less than the expert valuation. The business was valued at $663,934 but the parties agreed to list the business for sale on 17 August 2018 with an asking price of $732,500. In October a potential buyer, Mr T first approached the wife and offered her $720,000 for the business. She directed him to deal with the husband but when he contacted the husband he only offered $680,000. Unaware of Mr T’s $720,000 offer the husband was in favour of accepting the lower sum as it was above the business valuation. The wife refused to accept the lower amount given she had received the higher offer from the same prospective buyer.
By April 2019, the franchise advised the parties that they were not working with any interested buyers. Four months later the wife received an enquiry from another interested buyer and she sought the husband’s agreement to sell the business for not less than $700,000. The husband wanted to see evidence that the franchise had approved the purchaser before agreeing to the price.
In November 2019 the franchise advised the husband that Mr T had withdrawn his application in July; another potential purchaser “Mr U” was pursing another store; and the potential purchaser “Mr V” was due to meet with them in a couple of days to discuss a business plan. At the hearing the wife attested “Mr V” was in the final stages of approval by the franchise and had offered $732,000 and the husband was of the view Mr T was still a potential purchaser in the event “Mr V” was not approved by the franchise as Mr T had already been approved.
The parties each laid blame on the other for the business not having been sold prior to the hearing. The wife was of the view that it was the husband who had offered Mr T a price lower than which she had received. The wife also alleged the husband had been “aggressive and rude” with other potential buyers and that they needed at least $720,000 in order to discharge the significant debts of the business. The husband argued that the offer of $680,000 was above the valuation and the wife’s refusal to agree to that price has resulted in the business not being sold to date. I have no independent evidence to support either party’s position. However despite their dispute in this regard they were in agreement that the business needed to be sold. At the hearing the wife did not object to the husband being appointed as the Trustee for Sale of the business and for the business to be sold for a price not less than the valuation ($663,934). I will order accordingly.
Capital Gains Tax
The wife’s position in relation to whether she should be liable for Capital Gains Tax (“CGT”) arising from the sale of the business varied. In her affidavit she accepted it to be a joint debt but at the hearing argued that this debt should be borne solely by the husband. I do not accept her argument. The business was a joint enterprise even though the husband was the person who did the majority of work in it, particularly after separation. The wife has benefited from the income received from the business both during the relationship and since separation. The parties are to share in the burden of this debt when it arises.
Tax liability
The wife did not accept the husband’s figure for a debt owed to the Australian Tax Office (“ATO”) for the Saraf Trust. Annexed to the husband’s affidavit was an ATO activity statement dated 4 November 2019 which recorded the outstanding balance as $196,571.97. The wife did not present any evidence to refute this amount. There being no evidence to the contrary I find the tax liability debt is $196,576.
The N business
The husband asserted that in 2016 the parties attempted to start a business to import goods from Country K and registered a business called “N” incurring set up costs around $25,000. The husband deposed that that business was not trading and therefore of no value. The wife refuted the husband’s claim of a new business and asserted the business was never registered and the $25,000 payment was rather an unsecured loan to a cousin of the husband that was to be repaid on call. She claimed the husband called for the loan to be repaid in 2016 but the wife was not aware if it had been. I propose to exclude this item from the property pool as neither party provided any evidence to support of their positions.
Cash in CBA accounts
Exhibit C1 records the wife not knowing the balance in a number of Commonwealth Bank accounts but she did not challenge the husband on his figures under cross examination. I therefore accept the value ascribed by the husband.
Fair Work proceedings and disclosure of business information
In 2016 the Fair Work Ombudsman (“FWO”) commenced proceedings in this court against D Pty Ltd and the husband for contraventions of the Fair Work Act 2009. Pursuant to orders made on 11 December 2017 (amended 19 December 2017) pecuniary penalties totalling $195,528 were imposed - $32,130 payable by the husband as a director of the company and for the company to pay $160,650 and costs in the sum of $2,747.50. In these family law proceedings orders were made on 30 May 2018 that the sum of $195,528 be paid to Fair Work Australia from the proceeds of sale of the business along with the sum of $2,094 to Aitken Legal. An order also made that day provided:
(9) That the distributions of sale proceeds pursuant to paragraph four (4) hereof be made without prejudice to the rights of each party to advance arguments in these proceedings in relation to the treatment/characterisation of each such distribution.
The contraventions occurred prior to the parties separating. The husband asserted that penalties and costs should be borne by both parties as they worked in the business, made decisions together and were equally responsible for the day to day running of it. He said the wife was aware of all associated actions and/or inactions made in the business including those which gave rise to the FWO proceedings. This was strongly disputed by the wife. She denied knowing of these contraventions prior to the commencement of the FWO proceedings and asserted that she was excluded from business decisions by the husband and argued that she should not be liable for these penalties. I do not accept her evidence. Whilst I accept the husband played a greater role in the making of business decisions I was not satisfied the wife was a silent partner. She worked in the business and was aware of its affairs.
In relation to the Aitken Legal debt, the husband maintained that the account should be paid in accordance with the Court order dated 30 May 2018 notwithstanding Aiken had written this debt off the week prior to the making of the order. As that order was made by consent of the parties I will include the debt.
I am satisfied that the debts associated with the Fair Work proceedings have arisen through the conduct of the business which was a joint enterprise and therefore should be paid from the sale proceeds of the business prior to any adjustment to the parties.
Value of chattels
Exhibit C1 recorded the husband ascribing a value of $500 of the chattels in his possession and $5,000 in the wife’s possession. The wife ascribed $5,000 each. Neither party provided any evidence in support of their values nor challenged the other’s values. I propose to exclude this item from the property pool.
Student loan of the husband
Prior to the parties commencing their relationship the husband, whilst studying for his degree, incurred a student loan debt in New Zealand. This debt was not paid during the relationship as the husband prioritised the parties’ funds towards their business. The evidence surrounding the extent of this debt was confusing. In Exhibit C1 the husband contended that the loan currently stands at $99,215 but in his trial affidavit he said the debt was $19,754. The wife contended the debt should be excluded from the pool of assets and liabilities but if it was to be included the latter of those two figures should be used.
Doing the best I can from the evidence I find that in 2013 the District Court in Hamilton New Zealand issued a judgment for NZD$18,844.47. The husband annexed a copy of the certificate of judgment to his trial affidavit. He also annexed a letter from the New Zealand Inland Revenue dated 21 November 2016 which assessed his loan balance at NZD$80,756.96 with a total overdue at NZD$46,158.11. On 1 March 2019 the 2013 New Zealand judgment was registered in the Magistrates Court of Queensland at a value of AUD$18,644.47 notwithstanding the New Zealand Inland Revenue requested the judgment be registered at AUD$17,339.36. On 31 July 2019 an enforcement hearing summons issued from the Magistrates Court assessing the sum at AUD$19,753.78. The enforcement proceedings remained ongoing in the Magistrates Court at the time of the hearing in this court. The husband contended the $99,215 figure was taken from email correspondence he received from New Zealand Inland Revenue and disclosed to the wife on 27November 2019. This email did not form part of the evidence before this court.
I received no explanation as to the significant disparity in the figures and it would be inappropriate to speculate as to the whether the larger sum would be enforced. This makes it difficult to determine with any accuracy the extent of the loan. Despite the significant disparity I propose to adopt the sum of $19,753.78 as that is the amount for which there is evidence of enforcement.
The husband acknowledged this debt was incurred eight years prior to the commencement of the relationship but argued that it should be included as a debt of the relationship because the wife and children had benefited from his degree asserting he was employed full time in his profession until they purchased the franchise in 2008. The wife argued that it would not be just and equitable to include the debt as her pre-relationship debts were not included. I note however that there is no evidence of any of those debts remaining. She also argued that the family did not benefit from the debt as the husband chose to own the business rather than continue in his profession. I find that the family did benefit from the husband’s studies as he worked as a professional for the six to seven years of the relationship before purchasing the business. His knowledge acquired in his studies would have also been of assistance in the business. I will include the sum of $19,753.78 in the liabilities section of the pool.
Addbacks
It is open to the court, in appropriate circumstances, to exercise its discretion and notionally add back into a pool of assets for distribution funds that no longer exist. The adoption of that course will depend on the facts of each case. The Full Court of the Family Court in AJO & GRO [4] summarised three categories of such cases:
a)Where the parties have expended money on legal fees[5];
b)Where there has been a premature distribution of matrimonial assets[6]; and
c)Where a party has by a course of conduct reduced the value of an asset or where the party has acted recklessly, negligently or wantonly with the matrimonial assets effectively reducing their value.[7]
[4] (2005) 33 Fam LR 134 at p144, (2005) FLC 93-218 at p79,617
[5] DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816
[6] Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569
[7] Kowaliw (1981) FLC 91-092; (1981) 7 Fam LR N13
In Kowaliw[8] Baker J held that if a party carries out a course of conduct intended to reduce or minimise the value of matrimonial assets or acts “recklessly, negligently or wantonly” with those assets then such conduct and the economic consequences that follow may be taken into account when considering the provisions of s.75(2)(o).
[8] (1981) FLC 91-092 at p76,645; (1981) 7 Fam LR N13
The aim in adding back notional assets or considering conduct pursuant to s 75(2)(o), is to ensure that a just and equitable outcome is achieved. In Grier v Malphas[9] the plurality[10] said:
[128] ……… So-called “addbacks” are the “exception and not the rule”.[11] Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.[12]
[129] As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting.[13] However, when significant sums of money are said by one party or the other to have been “wasted”[14] or to amount to a unilateral “premature distribution of property”[15] and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
[9] (2016) 55 Fam LR 107.
[10] Murphy and Kent JJ.
[11] Cerini & Cerini (Sub nom C & C) [1998] FamCA 143 at [46].
[12] See, for example, Browne v Green (1999) FLC 92-873 and Gollings and Scott (2007) FLC 93-319.
[13] See, for example, Norbis v Norbis (1986) 161 CLR 513; Brandt & Brandt (1997) FLC 92-758; Ferraro and Ferraro (1993) FLC 92-335.
[14] In the sense in which that expression is used in Kowaliw and Kowaliw (1981) FLC 91-092 and the cases which have followed it.
[15] Townsend and Townsend (1995) FLC 92-569, and the authorities which have followed it.
Their Honours went on to say:
[131]……… the evidence discloses a very significant disparity in the sums expended by the parties and that her Honour did not address that disparity or examine the purposes for which the money was used. We repeat that this is a matter of discretion and could have been done either by “adding back” or, as has been suggested as often preferable by decisions of the Full Court, by reference to s 75(2)(o).[16]
[16] See, for example, Browne v Green (above); Shimizu & Tanner [2011] FamCA 271, per Bryant CJ and Kowaliw (above).
I will address the disputed items below mindful that the aim in exercising my discretion is to achieve a just and equitable outcome for the parties.
Post separation withdrawal by the wife
Shortly after separation the wife made two withdrawals of $40,000 from a bank account in her sole name with the reference “education” and just over a month later the same amounts were deposited back into the account and one withdrawal of $80,000 made that same day. This account was closed a month later. The husband claimed he learned of these transactions only as a result of a subpoena he issued. He invited the court to find that the wife attempted to reduce the size of the matrimonial pool and argued that the $80,000 should be included as an addback.
The wife’s case was that the husband was aware that those monies belonged to her sister who lives in Country K and that the reference to the money belonging to her cousin in her affidavit was a typographical error. She said that the funds were for her sister’s sole use despite the account being in her name. Her evidence as to how the funds were deposited into the account differed. In her affidavit she deposed that “… she deposited them form [sic] Country K …” yet her evidence under cross‑examination was that her sister would bring cash to Australia when she visited once or twice a year from 2010 to 2015 and give it to her to deposit. She did not file any affidavit from her sister corroborating her evidence. I accept the submission from the husband’s counsel that the wife’s evidence in this regard was convoluted and did not add up. I am satisfied that the wife has had access to $80,000 for which she has not accounted and that it is appropriate to include this sum as an addback.
R Accountants fees and Wife’s legal fees
As noted earlier in this judgment, on the second day of the trial after the wife’s case had closed, Counsel for the wife sought to tender various documents, some of which were objected to save for two bank statements which had not previously been disclosed, one of which[17] recorded the wife had paid $4,400 to forensic accountants R on 24 October 2019 and $13,896.55 for her legal fees on 4 November 2019. These amounts should be added back into the property pool.
[17] Exhibit W1
Conclusion as to Pool of Assets and Liabilities
I find from the evidence that the assets of the parties are as follows:
| ASSETS | |||
| DESCRIPTION | OWNERSHIP | VALUE AS FOUND | |
| 1. | Property - F Street, Suburb G | Joint | 410,000 |
| 2. | Business: Saraf Family Business Assets: a. Motor Vehicle 2 ($26,170) b. Motor Vehicle 1 ($15,660) c. Cash in bank ($52,620) Liabilities d. Hire purchase $25,299 e. Hire purchase $25,850 f. ANZ Business loan $127,849 g. Debt to Mr H $202,639 | Saraf Trust | 663,943 |
| 3. | Increase in equity in the business since the valuation report as a result of the decrease in the business loan from $127,849 to $74,710 as at 14.10.2019) | Saraf Trust | 53,139 |
| 4. | Cash - ANZ Acc #...52 | Wife | 1,647 |
| 5. | Cash - ANZ Acc #...76 | Wife | 12,298 |
| 6. | Cash – CBA Acc #...31 | Husband | 138 |
| 7. | Cash – CBA Acc #...23 | Husband | 435 |
| 8. | Cash – ANZ Acc #...36 | Husband | 3,842 |
| 9. | Cash – new bank account opened post-separation with O Bank #...13 | Wife | 10,000 |
| TOTAL ASSETS | $1,155,442 | ||
| 10. | ANZ Mortgage - Acc No. …22 (home loan) | Joint | 201,670 |
| 11. | ANZ Mortgage – Acc no …19 (business loan) ($74,710 as at 14.10.2019) $127,849 taken into account in the valuation report | Joint | - |
| 12. | Debt to Mr H $202,639 (as at 30.06.2018) $202,639 taken into account by the valuation report | Joint | - |
| 13. | Fair Works Matter - FCCOA Order | Saraf Trust | 160,650 |
| 14. | Fair Works Matter – FCCOA Order | Husband | 32,130 |
| 15. | Fair Works Matter – FCCOA Order (costs) | Saraf Trust | 2,748 |
| 16. | Aitken Legal re Fair Works matter | Saraf Trust | 2,094 |
| 17. | Cornerstone Law Offices (“CLO) re Fair Works Matter | Saraf Trust | 20,319 |
| 18. | Student Loan - Inland Revenue NZ | Husband | 19,754 |
| 19. | Capital Gains Tax implications from sale of business | Saraf Trust | TBD |
| 20. | Accountant Debt | Joint | 8,155 |
| 21. | Tax liability – BAS | Joint | 196,572 |
| TOTAL LIABILITIES | 644,092 | ||
| NET ASSETS EXCLUDING SUPERANNUATION | 511,350 | ||
| Super Fund E (previously Super Fund P) | Wife | 15,479 | |
| Super Fund Q | Husband | 63,131 | |
| TOTAL SUPERANNUATION | 78,610 | ||
| NET ASSETS INCLUDING SUPERANNUATION | 589,960 | ||
| Addback cash withdrawals by wife since separation | Wife | 80,000 | |
| Addback payment by wife to R Accountants | Wife | 4,400 | |
| Addback payment of wife’s legal fees | Wife | 13,897 | |
| TOTAL ADDBACKS | 98,297 | ||
| NET ASSETS INCLUDING SUPERANNUATION AND ADDBACKS |
| ||
Is it just and equitable to alter the property interests?
In Stanford[18] the majority held:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[18] [2012] HCA 52
I am satisfied that it is appropriate in this case to alter the property interests of the parties in light of the demise of their marriage and the fact that the maintenance of the current legal ownership of their property would not afford them justice and equity. In particular it is necessary for the parties to sell the business and alter the ownership of the former matrimonial home.
Contributions
I now turn to the assessment of the parties’ contributions.
At the commencement of their relationship neither party had any significant asset. The wife claimed to have around NZD$15,000 in savings but the husband claimed he was unaware of this money. The wife did not provide any evidence of the money or how it was used as a contribution to the relationship. I am satisfied however that because the husband had the student debt the wife should be assessed as having made a slightly greater contribution than the husband at the commencement of their relationship.
The parties agreed that their overall contributions during their relationship should be assessed as equal with each contributing in varying degrees both financially and non-financially. I accept those submissions and find that the husband made the greater financial contributions through his employment and work in the business and the wife made the greater non-financial contributions as homemaker and parent although her work in the business prior to separation was also a financial contribution made by her. I have also taken into account the ability of the parties to purchase their real estate and business by the provision of loans from the husband’s parents.
Since the parties separated the wife has had the full time care of their two children. The wife claimed the husband had not declared to the Child Support Agency his true income and has been assessed to pay only $35 per month child support. There was insufficient evidence before me to enable me to make that finding. I am satisfied however that the husband had fallen behind in his child support payments in 2019. He said that notices from the Agency had gone to an incorrect address and he became $16,000 in arrears. I accept his evidence. At the time of the hearing all arrears had been paid.
The wife criticised the husband for failing to pay her spousal maintenance however this criticism cannot stand as she conceded the business income was paid into the Saraf Trust which serviced the mortgage of the former matrimonial home in which she and the children live. The Trust was also the vehicle for the payment of the utility bills, internet, television services, groceries, fuel and the school fees. The school fees were $7,000 in 2017, $8,292 in 2018 and $9,650 in 2019. The wife also received an equal share of the profits in the business. She did not work in the business after separation.
Both parties agreed that of recent times the Saraf Family Business did not have the surplus to pay the parties a fixed income but notwithstanding this the wife had been making withdrawals from the business account without the knowledge or consent of the husband, with the most recent withdrawal occurring only a week or two prior to the hearing. The wife has also had the sole benefit of her income from her health care business and employment.
When I weigh up all of the above factors I have concluded that the contributions made by the parties should be assessed as equal. Given the lengthy relationship I am not satisfied the slightly greater financial contribution made by the wife at the beginning of the relationship by virtue of the husband’s student debt warranted a greater assessment in her favour.
Section 75(2) factors
Having determined the contribution elements the court is required to have regard to the future needs of the parties by assessing any relevant provisions under s.75(2). The significant factors to be considered are the age and health of the parties, their future earning capacity, the payment of child support, and the responsibility to care for the children.
Both parties are around the same age. The wife is in good health. The husband has been diagnosed with type II diabetes and is insulin dependent. He has had eye surgery and requires injections in his eyes every six weeks to enable him to see properly.
The wife was critical of the husband’s diagnosis stating in her affidavit that he:
[51] … conducted himself in a sloth like manner becoming morbidly obese by eating the stock from our Business and developed type II diabetes which has [sic] can resolve by not eating excessive junk food daily …
and
[88] … The Applicant is morbidly obese from eating the profits and junk food at the Business. I say diet and exercise will assist Mr Saraf loose the weight he needs too, if he decides to turn his mind to this.
Counsel for the husband submitted that whilst the wife accepted the husband’s diagnosis, she was of the view that he was the author of his own misfortune. There was no evidence to support the wife’s criticisms. Likewise there was no evidence to suggest that the husband’s ability to earn an income had been compromised by his health condition.
The wife has qualifications in health care and is employed as a public servant at Employer L earning $35,000 per annum. There was no suggestion that she would not continue in this employment.
The husband holds a degree but asserted that upon the sale of the business he would be unemployed as it would take some time for him to find suitable employment given he has been self‑employed since 2008. The wife invited the court to reject that assertion arguing that as his brother is an accountant he would be able to work for him. I have no evidence that the husband’s brother has the capacity or willingness to take on another worker. Nor am I satisfied that the husband would be able to easily walk back into his old job given he has been out of his profession for nearly 12 years. Having said that however, given his qualifications and business experience, I am satisfied he would be able to obtain employment in a related field after some refresher or would be able to run another business. I am not satisfied any adjustment is warranted in this regard.
Although the husband had fallen into arrears of child support he was up to date at the final hearing. Should he find himself unemployed following the sale of the business he will not be in a position to pay child support however, given my finding as to his employment prospects, I am satisfied he will be in a position to pay child support upon obtaining employment.
I am satisfied there should be some adjustment in the wife’s favour for the continuing care of the parties’ children. I would assess that adjustment at 5% given the children ages. X will turn 18 this year and Y is 15.
Taking all of those considerations into account I would make an overall adjustment in the wife’s favour at 5%.
Are the Orders proposed just and equitable
I propose to make orders for an overall 55%/45% division in the wife’s favour. The next stage of the process is to step back and assess whether in all of the circumstances it is just and equitable to make the proposed orders.
There will be an element of imprecision in the drafting of orders consistent with my findings as the business needs to be sold and although it has been valued, ultimately the price received will be determined by both the market and the willingness of the franchise to accept the proposed purchaser. There will also need to be provision made for the payment of capital gains tax on the sale. The husband’s proposed orders took all of these variables into account and I will use his draft orders as the framework for my orders.
The motor vehicles utilised by the parties are owned by the business and to effect the orders sought by each of them, that they retain the vehicle currently in their respective possession, it was submitted by both Counsel that the appropriate approach would be to make an order that each party do all things necessary to cause the business to transfer the relevant motor vehicle to each of them and after the sale of the business, the property adjustment be made consistent with whatever percentage I find. I accept the submission and will order accordingly.
Using the values ascribed in the table of my findings and consistent with these reasons, the 55%/45% division would be achieved, firstly, by each party retaining, notionally retaining, or taking the following subject to any potential sale of the former matrimonial home:
a)The husband:
i)
Cash – CBA Acc #...31
138
ii)
Cash – CBA Acc #...23
435
iii)
Cash – ANZ Acc #...36
3,842
iv)
Super Fund Q
63,131
v)
Motor Vehicle 2 (to be transferred from the business)
26,170
TOTAL ASSETS AND SUPERANNUATION
93,716
vi)
Student Loan - Inland Revenue NZ
19,754
TOTAL LIABILITES
19,754
NET POSITION
73,962
b)The Wife:
i)
The former matrimonial home at F Street, Suburb G:
410,000
ii)
Cash - ANZ Acc #...52
1,647
iii)
Cash - ANZ Acc #...76
12,298
iv)
Cash – new bank account opened post-separation with O Bank #...13
10,000
v)
Super Fund E (previously Super Fund P)
15,479
vi)
Motor Vehicle 1 (to be transferred from the business)
15,660
vii)
Addback cash withdrawals by wife since separation
80,000
viii)
Addback payment by wife to R Accountants
4,400
ix)
Addback payment of wife’s legal fees
13,897
TOTAL ASSETS
563,381
x)
ANZ Mortgage - Acc No. …22 (home loan)
201,670
TOTAL LIABILITIES
201,670
NET POSITION
361,711
The remaining asset is the business which needs to be sold. If after the business has been sold and all debts, taxes and costs associated with the sale have been paid, there remains a shortfall in sufficient funds for the husband to receive a 45% division, it will be necessary for the former matrimonial home to be sold unless the wife is able to make a cash payment to the husband to achieve the division. The proceeds of sale after payment of the mortgage and sale costs would then need to be divided to achieve an overall distribution in accordance with these reasons. In the orders I have not made provision for the wife to make a cash payment to the husband because the amount is not yet ascertainable and because there was no evidence of the wife’s ability to obtain funds to do so. The parties however may wish to consider this when they have a greater understanding of what the final division will be after the sale of the business.
For these reasons I will make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 3 March 2020
Exhibit W1 – ANZ statement for 23.09.2019 to 22.11.2019
Exhibit W2 – ANZ Online Saver statement 40876 for 14.12.2018 to 14.06.2019
Exhibit W3 - Superannuation Information Request Form 6 dated 17.12.2019
Key Legal Topics
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Property Law
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