Sartin and Sartin and Anor
[2016] FCCA 800
•11 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARTIN & SARTIN & ANOR | [2016] FCCA 800 |
| Catchwords: FAMILY LAW – Property – 24 year marriage – significant contributions by Wife’s parents – claim by Wife’s mother against the parties. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Bevan & Bevan [2013] FamCAFC 116 Cabbell & Cabbell [2009] FamCAFC 205 C & C (2000) FLC 93 - 220 G & G [2000] FamCA 1075 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Burke (1981) FLC 91-055 JEL & DDF (2001) FLC 93,075 Kowalski and Kowalski (1993) FLC 92-342 Norman & Norman [2010] FamCAFC 66 Pierce & Pierce (1999) FLC 92-844 Stanford & Stanford [2012] HCA 52 Sippel & Sippel [2004] FamCA 201 Tomasetti & Tomasetti [2000] FamCA 314 |
| Applicant: | MS SARTIN |
| First Respondent: | MR SARTIN |
| Second Respondent: | MS MOSS |
| File Number: | SYC 4514 of 2013 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 3,4 and 5 August 2015 |
| Date of Last Submission: | 5 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Freedman & Gopalan Solicitors |
| Counsel for the First Respondent: | Mr Ford |
| Solicitors for the First Respondent: | Willis & Bowring |
| Counsel for the Second Respondent: | Mr Stenhouse |
| Solicitors for the Second Respondent: | Jordan Antonopoulos & Co Pty Ltd |
THE COURT ORDERS THAT:
The parties forthwith do all acts and things and sign all documents necessary so as to effect a sale of Property B being Lot (omitted) in Deposited Plan (omitted) (“the property”) in the following manner:
(a)The parties list the Property with a Real Estate Agent (“the Real Estate Agent”) for the sale at first instance by auction at the earliest possible date (“the First Auction”);
(b)The parties appoint a Real Estate Agent, and set the reserve price and set the date for auction (“the First Auction Date”) at which the Property shall be sold, as mutually agreed by the parties or, in the absence of agreement on either the Real Estate Agent or the reserve price or the first auction date, within twenty eight (28) days of the date of these Orders, the Real Estate Agent and/or the reserve price and/or the first auction date (whichever has not been agreed on) shall be nominated by the President of the New South Wales Division of the Australian Property Institute. The cost of any such referral shall be paid equally by the Applicant and the First Respondent;
(c)The Real Estate Agent shall appoint the Auctioneer;
(d)In the event the bidding at the First Auction Date does not reach the Reserve Price, the parties may negotiate with the highest bidders or any other interested party and effect a sale.
Should a sale pursuant to Order (1) above not be effected, then the parties do all acts and things and sign all documents necessary so as to effect a sale of the property in the following manner:
(a)The parties list the property for sale by way of a second Auction with the Real Estate Agent appointed as in Order (1) above, (provided that should the parties agree on another Real Estate Agent, then with that other Real Estate Agent) (“the Second Auction”).
(b)The Property must be listed for sale by way of a second auction on a date being not more than two (2) months after the auction date agreed on (or appointed) under Order 1 above (“the Second Auction date”.)
(c)The reserve price for the second auction will be such as the parties agree within 28 days after the Auction Date agreed on or appointed, and failing such agreement at a reserve price determined by the Real Estate Agent appointed pursuant the above orders.
(d)If the property does not sell on the second auction date, then the parties do all acts and things and sign all documents necessary to immediately relist the property for sale by private treaty by the Real Estate Agent appointed pursuant to Order (1) above, and the terms set out in this Order shall apply to this private treaty also.
Pending the sale of the property pursuant to Orders (1) or (2) above:
(a)The Applicant and the Second Respondent shall have sole and exclusive occupation of the Property; and
(b)No party shall encumber the Property.
In relation to the sale of the property pursuant to Orders (1) or (2) above:
(a)The parties agree that Jordan Antonopoulos & Co is appointed as solicitor to act on the sale of the Property;
(b)The parties shall each co-operate in every way with the Real Estate Agent, the Auctioneer and Jordan Antonopoulos & Co including (without limiting the generality of the foregoing):
(i)making the key available;
(ii)allowing inspection of the Property at all reasonable times requested;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the property, including the grounds, are in a neat and clean condition at the time of inspection by the Real Estate Agent and prospective purchasers;
(v)signing all documents requested by the Real Estate Agent or the Auctioneer in relation to the listing and the sale of the property;
(vi)signing all documents requested by Jordan Antonopoulos & Co including but not limited to the transfer of the property, the registered mortgagees' discharge authority and direction or any other document required to give effect to completion of the sale of the property; and
(vii)attend the auction sale of the property and negotiate with the highest bidder in the event that the Reserve Price is not reached.
(c)The parties shall each execute a Contract for Sale in the form prepared by Jordan Antonopoulos & Co.
(d)The Applicant and the Second Respondent shall vacate the Property on or before completion of the sale of the property so as to provide vacant possession to the purchaser of the property.
On settlement of the sale of the property pursuant to Orders (1) or (2) above, the proceeds of sale shall be paid in the following manner and priority:
(a)All costs and expenses of sale including legal costs and disbursements, Real Estate Agent's commission, auctioneer's costs, advertising costs, valuer's fees and auction expenses (including repayments of any of these expenses as have been paid by any of the parties);
(b)The amounts required to pay any outgoings of the Property including but not limited to all council and water rates outstanding with respect to the property;
(c)In payment of the sum of $648,982.58 to the Second Respondent, Ms Moss;
(d)In payment of the sum of $120,000 to (omitted) Ltd;
(e)In payment of 70% of the balance then remaining to the Wife;
(f)In payment to the Wife the sum of $12,605.60;
(g)In payment of the sum of $25,000 (or the sum required to discharge the mortgage) to (omitted) Ltd; and
(h)In payment of the balance to the Husband.
Within 21 days, the Husband do all things necessary to transfer to the Wife all his right title and interest in the Mazda 3 motor vehicle registration number (omitted) held in the joint names of the parties.
Within 21 days, the Husband do all things necessary to transfer to the Wife all his right title and interest in (omitted) shares held in the joint names of the parties.
Subject to these Orders, the parties shall each respectively retain all interest in and entitlement to:
(a)All personal property in their respective possession or control;
(b)All shares, debentures, units and unit trusts, bank or building society or credit unit accounts standing in their respective sole names;
(c)All interests in life insurance policies and superannuation funds and other entitlements including but not limited to dividends and interest standing in their respective sole names;
(d)All other property and financial resources presently in their respective possession or control; and
(e)Any present or future expectation under a trust or estate.
The Husband indemnify and keep indemnified the Wife in relation to all or any liabilities to third parties (except the Second Respondent) in his name or in the name of (omitted) Pty Ltd.
Except as otherwise provided the parties shall be solely liable as between the parties to all liabilities presently in their respective names.
Order (5)(h) be stayed pending finalisation of any costs applications against the Husband and funds due to the Husband shall be held in the Second Respondent solicitors’ Trust Account.
That in the event that any party fails to execute any Deed or Instrument necessary to give effect to these Orders within seven (7) days of being requested to do so, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such Deed or Instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the Deed or Instrument. The cost of compliance shall be paid by the party at fault.
Any costs application(s) be filed and served with affidavit in support within 28 days, such application be made returnable before me at 9.30a.m. on 15 July 2016.
Any responding documents be filed and served within a further 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Sartin & Sartin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4514 of 2013
| MS SARTIN |
Applicant
And
| MR SARTIN |
First Respondent
And
| MS MOSS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The parties in these proceedings are the Wife, the Husband and the Wife’s mother, the Second Respondent. The Second Respondent seeks payment in the sum of $648,982.58 from the spouse parties. Each spouse party seeks orders for the alteration of their property interests. The spouse parties were married for 24 years and have two adult children.
Until the Husband was cross-examined on the third day of hearing, the central issue in dispute was whether the Second Respondent, had a claim in equity against the spouse parties in the sum of $648,982.58 [$207,963.58 + $441,019]. The Applicant Wife has always agreed with the Second Respondent’s claim, but the Respondent Husband has always disputed the claim. The Husband was seeking relief providing for no monies to be paid to the Second Respondent. Much of the hearing was spent on the Second Respondent’s claim.
However, the Husband’s position changed on the third and final day of hearing. In the Husband’s Minute of Order tendered on that day[1], the Husband acknowledged that the Second Respondent was owed $207,963, though sought an order providing for the funds to be paid to the Second Respondent from the Wife’s share of the property settlement. In cross examination on the third day of hearing, the Husband conceded the $207,963 should be repaid to the Second Respondent by both parties, and he also conceded that the Second Respondent should be repaid the other amount claimed by her in the sum of $441,019. This meant that the Second Respondent’s claim was resolved.
[1] Exhibit 1
On the final day of hearing, the parties agreed to a final order providing for the transfer of a motor vehicle to their eldest son, X. That order was made by consent on that day. The parties also agreed to a number of orders to be made at the time of final determination, (not at the time of hearing) which provide for the sale of the Property B property and for each party to retain assets in their possession and debts held in their respective names. I have therefore included those orders.
All parties were represented by counsel at the hearing. Mr Dura appeared for the Wife, Mr Ford for the Husband and Mr Stenhouse for the Second Respondent.
Issues
The issues for determination are:
a)Whether a debt of $145,000 to (omitted) Ltd [“(omitted)”] secured by the Property B property, $120,000 borrowed by the parties 4 months prior to the date of separation and $25,000 borrowed nearly two years after separation, should be solely the responsibility of the Husband in whole or in part.
b)Each party’s percentage entitlement to the balance of the sale proceeds of the Property B property.
Orders sought by Applicant Wife
The Wife seeks orders providing for the Second Respondent to be paid $648,982.58, (414,019 + 207,963.58) from the sale proceeds (after the costs of sale) of Property B, for the Wife to receive 70% of the balance then outstanding, and the Husband 30%. The Wife seeks an order providing for the instalments on the debt secured by the Property B property to (omitted) to be paid by the Husband pending the sale of the home, and fully discharged from the Husband’s share of the sale proceeds when the property is sold.[2]
[2] Exhibit 3 and at pages 121 and 122 of 5 August 2015 transcript of proceedings
Orders sought by Respondent Husband
At the end of the hearing, the Husband seeks orders providing for the Wife to receive 60% of the proceeds of sale of Property B, after payment of sale costs, payment to the Second Respondent and payment of $120,000 to (omitted). The Husband seeks an order providing for him then to receive the balance of the net proceeds, after payment to (omitted) of $25,000 from his share of the proceeds.
Orders sought by Second Respondent, the Wife’s mother.
The Second Respondent seeks orders providing for the spouse parties to account to her for all monies applied by them firstly, in discharge of the mortgage to the (omitted) Bank over the Property G property in the sum of $441,019.00; and secondly in payment to the Wife in the amount $207,963.58, a total sum of $648,982.58. As already noted, by the end of the hearing the spouse parties agreed that the Property B property be sold and the Second Respondent paid the sum she claims. I therefore find it unnecessary to set out her alternative claim. The Second Respondent seeks her costs on an indemnity basis. Her counsel submits at the end of the hearing that the order relating to any payment to the Husband from the sale of Property B should be stayed, pending the outcome of her costs application against him.
Background facts
The parties commenced a relationship in approximately 1979. They started living together at the home of the Husband’s parents after their marriage on (omitted) 1986. They have two sons, X, now 28 years of age and Y, aged 20. The parties separated in October 2010 when the Husband moved out of the former matrimonial home at Property B. The Wife and the parties’ two sons remain living there with the Second Respondent.
The Wife, born in Australia, was aged almost 54 years at the time of hearing. She was not in paid employment and was relying on Newstart benefits and financial help from the Second Respondent.
The Husband, born in (country omitted) was aged almost 54 years at the date of trial. He is a (occupation omitted) and employed full time by a company located in (country omitted) where he was living with his de facto wife and baby daughter.
The Second Respondent, born in (country omitted), was 85 years of age at the time of hearing. She was on a pension.
The Wife commenced these proceedings in August 2013. The matter was listed for final hearing before me in November 2014 but not reached. It was heard in August 2015 for 3 days.
Legal principles
Section 79 of the Family Law Act1975 (Cth) gives the Court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Prior to the High Court’s decision of Stanford & Stanford [2012] HCA 52, it was generally accepted that the approach to the determination of an application under s.79 involved a “4 step process:” identification of the pool of assets, an assessment of contributions, both direct and indirect, an assessment of s.75(2) factors, and consideration as to whether the actual orders are, in all the circumstances, just and equitable. This hearing was conducted substantially in accordance with this 4 step process, and neither of the spouse party’s counsel submitted that the Court’s approach should change as a result of Stanford.
The Full Court in Bevan & Bevan [2013] FamCAFC 116 discussed the impact of the High Court’s decision in Stanford on the 4 step approach. The Full Court said that Stanford will serve as a reminder that the 4 step process “merely illuminates the path to the ultimate result”… “it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.”
The Full Court in Bevan emphasised that the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s.79(2), but did not accept that s.79(2) forms a threshold issue or that the requirements of s.79 must be followed in a particular order. Section 79(2) provides:
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In the Full Court decision of Hearne & Hearne[3], the Appellant argued that “unless a finding is made as to whether it is just and equitable to alter property interests, the court has no power to make a s.79 order.” The Full Court rejected that submission. His Honour Justice Strickland said:
It is readily apparent from what the plurality said in Stanford, that “satisfaction of the s 79(2) requirement can be inferred, at least in part, from the issues joined, and importantly, not joined, between the parties” (Chapman & Chapman (2014) FLC 93-592 at [22]). Further, there need not be an express finding that the hurdle of s 79(2) has been overcome; it can be by necessary implication from the totality of the trial judge’s reasons for judgment….
[3] [2015] FamCAFC 178[3]
The first step requires identification of the property in which the parties have a legal or equitable interest.[4] The Court may make such Orders “as it considers appropriate” and shall not make any order to alter the parties’ property interests, unless it considers it “just and equitable” to make the Order.[5] The Court must determine what Orders are just and equitable by applying section 79(4) of the Act.
[4] Bevan at paragraph 77
[5] Family Law Act 1975, ss. 79(1) and (2)
The High Court explained the meaning of “just and equitable” as follows:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[6]
(Footnotes omitted)
[6] Stanford & Stanford [2012] HCA 52 at paragraph 36
Existing property interests of the parties
The Court was provided with a Balance Sheet on the final day of hearing which was relied on by counsel during submissions. As already noted, the parties agreed that the BMW (omitted) series motor vehicle would be transferred to their son X, and excluded from the list of assets available for distribution. The Court is not provided with values for household contents and personal items, and those items have therefore been excluded. Figures are provided for modest bank account balances for each party, but given that the values of these were not fully disclosed by the Husband, and will have a minimal impact on the outcome, they have also been excluded. Both spouse parties have credit card debts and the Husband also has a personal loan. The Husband says his debts are substantial. However, he does not adduce any evidence of the expenses giving rise to these debts and he concedes that the personal loan and most of, if not all, the credit card debts have accrued since separation. The Husband’s counsel agrees that these debts should be excluded. Given there is no issue raised and no evidence adduced about how the Wife’s credit card debt balance accrued, and given the issues agreed to be determined, I have decided to exclude both parties’ credit card debts from the list of assets available for distribution.
The only issue in dispute on the balance sheet is whether the Husband should be responsible for the whole or only part of the debt owed to (omitted).
In May 2010, the Husband and a former colleague, registered a company known as (omitted) Pty Ltd. [“(omitted)”]. In June 2010, 4 months before their separation in October 2010, the Husband approached the Wife for her consent to borrow $120,000 from (omitted) secured against the Property B property, to invest in the new business. The Wife gave her consent (she says reluctantly) and in July 2010 the loan funds were paid. The Wife says the parties were dependent on the Husband’s income and the company he had been working for was in financial difficulty. The parties were living off the proceeds of sale of the Property G property so she was anxious the Husband’s business would succeed and generate income. The Husband wanted to offset his unpaid entitlements from his employer against the acquisition cost of plant and equipment from his past employer for the new business.
In July 2012, nearly two years after the parties’ separation, the Husband sought the Wife’s consent to extending the (omitted) loan by a further $25,000. By then, the Husband was a Director of (omitted). The Husband says his business partner wanted to withdraw from the business for personal reasons, and the Husband needed the funds to meet certain household expenses. The Wife says she consented to the increase in the loan but only on condition that the Husband would take responsibility for the whole of the debt of $145,000 [$120,000 + $25,000]. It is common ground that on 18 July 2012, the Husband signed a letter, prepared by the Wife, which read[7]:
[7] Annexure Q to Wife’s affidavit sworn on 21 October 2015
I will be fully responsible for the repayment of the loan.
I will be fully responsible for the payout of the loan.
I will be fully responsible for the increased amount of the loan.
The Husband acknowledges his agreement to take responsibility for the whole (omitted) debt in cross examination when shown a copy of the letter, but says he had always understood he was only solely responsible for the additional $25,000, not for the whole debt. He says he was financially “desperate” and the Wife would not agree to the additional $25,000 unless he signed the letter. He says the funds were applied to the business which generated income for the Wife and children when the parties had no other income, before he moved to (country omitted) in April 2013. The Husband acknowledges that he has made no contribution to the debt since his relocation.
There is no dispute that the Husband agreed to take responsibility for the whole of the debt to (omitted) when the loan was extended by $25,000 in July 2012. However, I accept that the original loan funds were obtained to support the establishment of the Husband’s new business which both parties hoped would succeed. While (omitted) has been deregistered and has no value in these proceedings, I am satisfied that had it been successful its value would have formed part of the assets available for distribution. The Wife consented to the original loan of $120,000 without conditions, and I am satisfied the $120,000 should be the responsibility of both parties, despite the Husband’s later agreement to accept responsibility for the whole debt. I accept the Husband’s evidence that he signed the agreement while under significant financial stress. As the Husband agrees, he will take sole responsibility for the additional $25,000 borrowed from (omitted).
I am satisfied the assets and liabilities of the parties at the date of hearing available for distribution between the parties are as follows:
Assets and liabilities at the date of hearing
$
Property B (Joint)
1,375,000
Motor vehicle – Mazda 3 (Joint)
12,450
Shares – (omitted) shares (375) $5.70 per share as at 16 January 2014 (Joint)
2,138
Mortgage to (omitted) (Joint)
-120,000
Amount required to discharge equitable claim of Second Respondent (Joint)
-648,982.58
(omitted) Bank Account No. (omitted) (Wife)
excluded
Superannuation – (omitted) Super (Wife)
1,884
Superannuation – (omitted) (Wife)
2,933
Superannuation – (omitted) (Wife)
5,424
Motor vehicle – BMW (omitted) (Husband) subject to (omitted) Finance (Husband)
Nil
(omitted) Bank – (omitted) Account (omitted) (Husband)
Excluded
(omitted) Pty Ltd – company deregistered (Husband)
Nil
(omitted) Bank Account (with current partner) (Husband)
excluded
(omitted) Bank Account – (omitted) (Husband)
excluded
Superannuation – (omitted) (Husband)
22,359
Superannuation – (omitted) (Husband)
6,290
Debt to (omitted) Mortgage (for which the Husband will be responsible)
-25,000
TOTAL
634,495.42
Is it just and equitable to make an order?
The Court is not asked to address the requirement created by s.79(2) of the Act as to whether any order should be made. The spouse parties were married for 24 years, their relationship has broken down and they both seek orders providing for an adjustment of property interests pursuant to s.79 of the Act. They have agreed to sell the former matrimonial home at Property B held in their joint names. Neither party seeks an equal division of the net sale proceeds. The plurality of the High Court in Stanford said:
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. …
In Bevan, the Full Court said:
In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases.[8]
[8] Bevan at paragraph 70
In the circumstances of this case, I am satisfied that it is just and equitable for the Court to alter the parties’ existing property interests.
Contributions
In accordance with section 79(4), the court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets as well as to the welfare of the family during cohabitation and after separation. The Court must consider the contributions in an overall sense.[9] The Full Court has held that it is not necessary for the Court to justify its decision in property cases by reference to precise mathematical calculations, but rather a broad approach is preferred.[10] The Court is nevertheless required to undertake an evaluation of each party’s respective contributions.[11] The Court must examine what actually happened, not make assumptions about what happened. It is not sufficiently rigorous to assume that what one party did is equal to what the other party did and conclude there is no distinction to be made in relation to each party's contributions.
[9] Norman & Norman [2010] FamCAFC 66; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143; Kowalski and Kowalski (1993) FLC 92-342; G & G [2000] FamCA 1075
[10] In the Marriage of Burke (1981) FLC 91-055
[11] JEL & DDF (2001) FLC 93,075
Although the parties had been separated for almost five years as at the date of final hearing, there is no requirement on the Court to separately assess matters occurring after separation in arriving at an assessment of contributions.[12] Given the parties continued to have a financial relationship after the date of separation, I have assessed each spouse party's contributions overall.
[12] Sippel & Sippel [2004] FamCA 201
In relation to the spouse parties' superannuation interests, it is open to the Court to decide whether to treat superannuation interests as a separate list of assets, or as part of one asset list. The majority of the Full Court in C & C[13] said there is no binding principle as to the exercise of the Court’s discretion in deciding whether a one list or two list approach should be adopted. Neither party’s counsel made submissions on this issue. At the time of hearing, each party held small superannuation interests when considered in the context of the overall net asset position. I have therefore found it convenient to address the superannuation and the non-superannuation assets in the one list.
Section 79(4) contributions
[13] (2000) FLC 93-220
Financial contributions
Many facts relating to contributions are agreed. However, when disputed, I find the Husband’s evidence generally less reliable than that of the Wife and the Second Respondent. The Husband says he had difficulty recollecting events because many of the relevant documents were not available to him. Nevertheless, he makes a number of assertions which contradict the documentary evidence, and at times his evidence is too vague to be probative. For example, he deposes to realising a profit of $110,000 from the sale of a factory at (omitted) which was used for renovations at Property B, but provides no details, no documents, no evidence of timing; he deposes to “possibly” realising $30,000 from the sale of a property on the (omitted), but provides no details, no documents, no evidence of timing. The Wife deposes to the Husband owning a property at (omitted) in partnership with his colleague Mr D, but to having no knowledge of how the sale proceeds were applied. The Husband says he held a 20% interest in that property and sold his share for no profit, but no details are provided. The Husband deposes to his father giving him $30,000 to $50,000, but has no idea when he received the gift, where he banked the money or how it was applied. In cross-examination, the Husband concedes that he made no attempt to find any record of the transaction. On the other hand, the Wife and the Second Respondent verify many of their assertions with documentary evidence.
In October 1983 the Wife, assisted by her parents, purchased a property at Property G for $68,500. The Wife’s parents paid the deposit, the stamp duty and legal costs from their savings and the Wife borrowed the sum of $45,000 from (omitted) Bank to meet the balance of the purchase price. The property was tenanted and the rent paid towards the mortgage. While the evidence is not precise, on the Second Respondent’s unchallenged evidence, I am satisfied the Wife’s parents paid the majority of the expenses related to that property. The Wife later received approximately $7,500 by way of the first home owner’s grant in instalments over a number of years. I am unable to make a finding as to how the Wife applied those funds.
On (omitted) 1986, the spouse parties married. At that date, the Wife deposes to the balance of the mortgage on the Property G property being approximately $15,000, and while the Husband disputes that figure, I am not satisfied anything turns on the issue. There is no dispute that in (omitted) 1988, the Wife’s parents paid the sum outstanding on the mortgage from their own funds to discharge the mortgage on the Property G property.[14] Thereafter I accept the Wife’s evidence that the rent on Property G of approximately $200 a week (I accept it may have been even higher as the Husband asserts) was paid to the parties’ joint account for their use.
[14] Annexure G to Second Respondent’s affidavit sworn on 27 July 2015
The Husband deposes to the parties, “early in our marriage”, purchasing a town house outside (omitted) which they tenanted and negatively geared for their financial benefit. He says ultimately the parties achieved a profit of approximately $30,000 which was contributed to the household.
From the date of marriage for a period of approximately 10 years, the parties lived with the Husband’s parents, rent-free. The Wife says the parties assisted with expenses from time to time, while the Husband says the parties made no financial contributions until the very end of the 10 year period. The parties therefore saved most of their income. The Husband deposes to the parties saving an estimated $50,000. Although the Husband does not explain how he came to this figure, I am satisfied rent free accommodation for 10 years is a substantial contribution on the Husband’s side.
On (omitted) 1987, the parties’ son X was born.
In early 1991, the Wife’s parents decided to move from their (omitted) home to a single level home to be built at the Property G property. In (omitted) 1991, the Wife entered into a Deed of Trust (the Deed) with her parents, declaring that she would hold the Property G property beneficially for her parents. The Deed required the Wife to obtain the written consent of her parents before encumbering the property or selling the property. The Husband does not refer to the Deed in either of his Affidavits, though says he was aware of its existence. While he contends that he did not read a copy of the Deed until these proceedings started, I am satisfied the Husband was aware of the terms of the Deed from 1991.
In early 1992, the Wife’s parents sold their unencumbered home in (omitted) for a nett amount of $323,000, having decided to build a home on the Property G property. In 1992, the Wife’s parents completed the construction of their home at Property G and moved in.
In (omitted) 1992, the Wife’s parents assisted the spouse parties to buy vacant land at Property B in joint names, and to build a house on the land which became the former matrimonial home. On 7 April 1992, the sum of $260,000 is withdrawn from the Wife’s parents’ joint (omitted) Bank account and paid into the joint account of the spouse parties.[15] The parties used $179,250 to purchase the vacant land. The Wife deposes to the $260,000 advance being a loan, though it is not part of the Second Respondent’s claim against the spouse parties.[16]
[15] Annexure F to Wife’s affidavit sworn on 21 October 2014
[16] At paragraph 13 of Wife’s affidavit sworn on 21 October 2014
I accept the Second Respondent’s evidence that she and her husband gave the spouse parties’ substantial ongoing financial assistance. In 1993, the Wife’s parents advanced a further $15,000 for the spouse parties’ businesses. On 16 September 1993, they paid $8,500 for carpets for Property B.[17] On 20 October 1993, they advanced the parties a further $30,000.[18]
[17] At Annexures N and O of Second Respondent’s affidavit sworn on 27 July 2015
[18] At Annexure L of Second Respondent’s affidavit sworn on 27 July 2015
On (omitted) 1996, the spouse parties’ second son, Y, was born.
In approximately March 1998, the parties borrowed $180,000 from the (omitted) Bank and secured the loan against the Property G property without the knowledge or consent of the Wife’s parents, to continue building works at Property B. According to the Wife, the parties repaid that loan and borrowed again to enable the Husband to trade in and purchase motor vehicles.
On (omitted) 1998, the Wife’s father, the Second Respondent’s husband, died.
From 2004/5 the parties borrowed further against the Property G property, and while the Husband disputes the Wife’s evidence as to the purpose of the loans and as to how the loan funds were assigned to each of them, I am satisfied that the parties had variable incomes, at times irregular, and that the parties were using loan funds at different times for their businesses, motor vehicles, for Property B, and to meet their own personal and household expenses.
In 2008, the parties refinanced their loans with the (omitted) Bank against the Property G property. There were then three loan accounts: $215,000 in the Husband’s name; a (omitted) line of credit in the Wife’s name for $120,000; and a loan account in the Wife’s name for $100,000. The parties are in dispute as to how those funds were applied, each accusing the other of waste and extravagance, but the extent of the loans is agreed.
In October 2008, the Wife was admitted to hospital for depression and attempted suicide. There were difficulties in the marriage.
The Second Respondent remained unaware of the debts secured against the Property G property in which she was living.
In 2009, the Husband asked the Wife to speak to the Second Respondent about selling the Property G property so the spouse parties could discharge their debts. I accept the Wife’s evidence that the Husband reassured her that the businesses would make money; they would then repay the Second Respondent and buy her a smaller home close to Property B. The Wife told the Second Respondent that the total debt was approximately $350,000, when in fact, the debts secured amounted to approximately $441,000. While the Husband denies he gave this reassurance to the Wife, he offers no explanation as to why the Second Respondent would have otherwise agreed to sell her home to pay the debts of the spouse parties. The Wife says, and I accept, that her mother only agreed to sell her home on the basis she would be repaid the borrowed funds and would live with the parties until she had another home.
On 7 November 2009, the Wife sold the property at Property G for $660,000. The Second Respondent deposes to being upset, regretting giving her consent and to the Husband reassuring her that they would buy her another home. While the Husband denies such conversations, I accept the Second Respondent’s evidence. The sale was settled on 21 December 2009. The spouse parties managed the sale and did not inform the Second Respondent as to how the sale proceeds would be applied until it was too late for the Second Respondent to withdraw. The sale proceeds were applied as follows:
a)In discharge of the mortgage securing the loans to the (omitted) Bank in the amount of $441,019;
b)In payment of the balance of $207,963.58 to the Wife.
The Second Respondent received no benefit from the sale of the Property G property, despite the terms of the Trust Deed. The Second Respondent moved into the Property B property with the spouse parties.
While the Wife deposes to the Husband spending the funds she received from the sale of Property G, and the Husband deposes to having no access to any of those funds, in cross-examination, each party agrees they both benefited. By 30 June 2010, the funds were spent.
As earlier noted, in May 2010, the Husband registered the company, (omitted) Pty Ltd.
In July 2010, as already noted, the Husband borrowed $120,000 from (omitted), to acquire plant and equipment for the business. The loan was secured against Property B.
On 25 October 2010 the parties separated when the Husband left the Property B home. The children remained living with the Wife and the Second Respondent in the home.
On 25 October 2010, the Second Respondent asked the Wife about the whereabouts of the balance of the sale proceeds. The Wife says “Mr Sartin spent it all.” In her affidavit, the Wife provides details of how the funds were applied.[19] In cross examination, the Wife corrected her affidavit. She acknowledged that the funds were applied to pay off debt in each party’s name, and to pay for family expenses, including holidays.
[19] At paragraph 52 of Wife’s affidavit sworn on 21 October 2014
On 18 July 2012, the spouse parties agreed that the Husband would borrow a further $25,000 on the mortgage to (omitted).
On 15 April 2013, the Husband moved to (country omitted) and ceased paying the mortgage instalments on the (omitted) loan. In September 2013, the Second Respondent started making interest only payments on the loan to avoid foreclosure.
On 1 April 2014, the Wife and the Second Respondent formalised a loan agreement for the Second Respondent to lend the Wife money, primarily to meet the mortgage instalments on the (omitted) Loan.
On (omitted) 2014, the Husband and his de facto wife have a child A.
Between August 2013 and July 2015, the Second Respondent lent the Wife $31,836.30 for her personal needs, the children’s needs, legal fees and property expenses.
Between December 2013 and July 2015, the Second Respondent lent the Wife $26,368.70 for interest payments on the (omitted) Loan.
The Husband says he contributed $115,219 for the benefit of the Wife and children after separation, but was unable to verify the payment of those funds. He says he has provided substantial financial support to the children, and continues to pay X $200 a week and Y $100 a week. He also says he gave Y $2,000 for a trip to (country omitted). The Wife, on the other hand, can demonstrate by bank documents that the Husband has contributed $52,600 to the household since separation, which includes payments to the children. I find the Wife’s evidence more reliable and accept her evidence over that of the Husband.
Employment history
I find each party’s evidence as to income unsatisfactory and inadequate. I am not able to make findings as to what each party earned during the marriage.
It is common ground that the Husband was the primary income earner during the marriage, and chief financial advisor within the family. The Wife did not have her own bank account until 2006. As a (occupation omitted) by profession, the Wife says she relied on the Husband to make the right financial decisions and guide the family. She says her mother looked up to the Husband.
I accept the Husband’s evidence that when the parties married, both were employed, with the Husband earning approximately double the income of the Wife. During the marriage, the parties established and ran several businesses in which both parties worked with assistance from the Husband’s family and from the Wife’s family at different times.
The Wife identifies the following businesses:
a)A (omitted) company known as (omitted) Pty Ltd, and at the same time, a (omitted) company known as (omitted) Pty Ltd. The Husband managed the financial side of the businesses. The Wife was involved in the administration. The Husband disputes her claim that she was engaged in tasks including reception and data entry for debtors and creditors, deposing to the Wife playing a minimal role. There is also a dispute about the roles played by the Husband’s parents and the Wife’s parents in the businesses, the Wife deposing to them all having key roles at different times and her parents, at least, working for no pay. The Husband deposes to the Wife’s parents having minimal involvement.
b)A (omitted) business known as (omitted) Pty Ltd. The company gave (business omitted). The Wife says the Husband managed the financial side and the Wife the administration and data entry. Again, the Husband claims the Wife had minimal involvement.
c)(omitted) Pty Ltd, a (omitted) business. The parties bought one store which increased to five. The Wife says she worked in the business every day. The Wife’s mother worked in the stores when needed, including a period of over 2 years in the (omitted) store for no pay. The Husband deposes to earning approximately $160,000 per annum from this business, with no documentary verification or details as to when he earned this income. The Husband disputes the Wife’s contention that she worked in the stores every day. He deposes to the Wife having minimal involvement, though says she assisted in the stores if someone was sick. He says the Wife’s mother would attend the stores occasionally “to socialise with (omitted)”.[20]
[20] At paragraph 21 of Husband’s affidavit sworn on 11 December 2013
The evidence does not disclose the periods each of these businesses was operating, and neither party adduces evidence of profitability. It is common ground that none of the businesses survived, and by 2009 the parties had accrued substantial debt they were unable to pay. I accept the Husband’s evidence that at times he was earning a reasonable income, and worked longer hours than the Wife, but find that the businesses never provided a solid reliable income base for the parties and needed the injection of borrowed funds from time to time, as previously addressed. I am satisfied on the Wife’s evidence that the Husband said to her in 2009 that if the Second Respondent sold her home and their debts were repaid, the spouse parties would be in a position to “start from scratch.”
The Wife deposes to ceasing employment in January 2009 (though it is not clear what she was doing when she last worked) until she was employed by (employer omitted) between June 2013 and 14 October 2013, when she lost that job. She has not been in paid employment since.
The Wife deposes to the Husband having no regular income for the first half of 2010. In 2009/10 the Husband worked for (employer omitted), a company in financial difficulty. In May 2010, the Husband incorporated the company known as (omitted) Pty Ltd. That company employed the Husband and his former colleague at (employer omitted), Mr P. The Husband was a shareholder of the company. As earlier noted, in July 2010, the Husband, with the Wife’s consent, borrowed $120,000 from (omitted), secured by Property B to acquire the assets from his previous employer, (omitted). However, because he says that he and Mr P were owed in excess of $120,000 by way of unpaid salaries and annual leave, the borrowed funds became assets of the company. The Husband says that he drew wages from (omitted) at that time to meet household expenses and was often sleeping at the office to keep the business running. The Wife deposes to working for (omitted) from May 2010 to the end of October 2010 in reception/administration and never being paid. As already noted, the Husband says he was under a great deal of financial stress when, in July 2012, he asked the Wife for her consent to increase the loan by $25,000. The business was ultimately deregistered, and the funds borrowed from (omitted) to keep it going have not been repaid. As already noted, the Wife has largely relied on financial support from her mother since separation.
As at June 2014, the date of swearing his Amended Financial Statement, the Husband deposes to being employed full time as (occupation omitted) at (employer omitted) on a gross income of $99,996. In October 2014, he deposes to working for the same employer on an annual income of $115,600 per annum. He deposes to owning no additional assets and to his expenses being in excess of his income.
Findings on financial contributions
I find the Wife has made substantially greater financial contributions to the assets of the marriage than the Husband. In particular, the Wife made the greater initial financial contributions. She owned the property at Property G when the parties commenced cohabitation. She and her parents made the sole contributions to that property. The Property G property generated income for the parties by way of negative gearing and by way of rental income after the mortgage was discharged by the Wife’s parents in 1988.
In Cabbell & Cabbell[21] the Full Court affirmed[22] that given the wide discretion exercised under section 79, there is:
…no formula…which prescribes how a court should deal with initial contributions in cases of property adjustment.
[21] [2009] FamCAFC 205
[22] Ibid at paragraph 42
The Full Court then referred to the comprehensive discussion in Pierce & Pierce[23] as to the weight to be afforded to initial contributions, in particular at [28] where the Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the Husband and the Wife. In considering the weight to be attached to the initial contribution.... regard must be had to the use made by the parties of that contribution.[24]
[23] (1999) FLC 92-844 at 85,881
[24] Affirmed in Field & Basson [2013] FamCAFC 32 at paragraph 51
I do not accept the Husband’s counsel’s submission that because Property G has been sold, it is no longer relevant. On the contrary, when proper consideration is given to how that property has been used by the parties right up until its sale in 2009, I find that the Wife’s initial contribution has added significant value to the existing pool of assets available for distribution between the parties and accordingly, should be given appropriate weight.
I give credit to the Husband for the financial assistance given by his parents in the first 10 years of the marriage, when the parties lived with them rent free.
After the Wife’s parents built on the Property G property, and moved to live there, the parties used Property G to borrow large sums of money for their own purposes. While those funds will be repaid to the Second Respondent, the parties enjoyed the benefit of those borrowings for several years. The borrowings were also negatively geared, and until July 2010, left the Property B property unencumbered. Further, and significantly, the Wife’s parents advanced the parties over $300,000 towards the Property B property. The Wife deposes to the bank issuing a section 57(2)(b) notice in or around September 2013 as a result of the Husband’s default. Since then, the Wife’s mother has paid the interest instalments on the debt to (omitted) in the sum of $1100 a month, protecting the parties from foreclosure on the property. The Husband now has the benefit of the increase in the value of Property B since he stopped making any payments on the mortgage. The Second Respondent has assisted with payment of bills, expenses for the children and kept the family financially afloat.
While I accept that the Husband has been the higher income earner, I am also satisfied that the parties, led by the Husband, have made poor financial decisions during the marriage, resulting in their currently difficult financial state.
Non-financial contributions
In 1983, it is common ground that the Husband was involved in negotiations for the purchase of the Property G property.
In relation to Property B, the Husband says and I accept, that he was actively involved in selecting the location of the vacant land, he drew up plans and prepared costings. I accept that the Husband arranged and employed subcontractors and mapped out the house on the block with the architect, but I find he took these steps in consultation with the Wife who was also actively engaged in the planning and decision making. I accept the Husband’s evidence that he obtained quotations for work on the construction of the Property B property but again, I am satisfied that the Wife was also involved. I accept that the Husband was often up at 6 a.m. to ensure subcontractors arrived on time, but find the Wife also took a significant role. While the Husband deposes to doing all the painting and landscaping on the property, I accept the Wife’s evidence that the Husband did a lot of painting, but that she and her father also assisted.
The Wife says, and I accept, that the parties and their parents were closely involved in the building of Property B over 4 years. She says, “We all took pride in the building of the house.” She says everyone was involved. “It was fun”. I accept that the Wife’s parents helped with the clearing of the vacant land, cutting down trees, and later with clearing the mess and cleaning the work site after the tradesmen left each day. I accept that as the Wife’s father was a (occupation omitted), he put in the skirting boards throughout the house as well as assisting with other tasks. I accept that the Husband’s parents also assisted from time to time.
Contributions to welfare of family including as homemaker or parent
During the marriage, the Wife deposes to being solely responsible for domestic tasks, as the Husband “was of (nationality omitted) background and a culture where men just did not assist in the household.”[25] The Wife deposes to assisting in the garden, mowing lawns, trimming hedges and cleaning cars, as well as being responsible for taking out the bins. When the Second Respondent moved in with the parties, she assisted the Wife. The Wife says that the Husband “made no contribution of a domestic nature at home.”[26]
[25] At paragraph 72 of Wife’s affidavit sworn on 21 October 2014
[26] At paragraph 72 of Wife’s affidavit sworn on 21 October 2014
While the Husband deposes to also being involved in domestic tasks, excluding cleaning and cooking, I am satisfied the Wife took the major responsibility for these tasks, because the Husband was mostly working full time and adduces very limited evidence of his domestic involvement. I accept the Husband mowed lawns and took out rubbish bins at times. I find it unlikely that the Husband did “nothing” as the Wife suggests.
The Wife deposes to managing and undertaking all tasks associated with the children’s day to day care. She transported them to and from school, helped with their homework and attended to their extracurricular activities. The Husband deposes to being actively involved in the care of the children. I accept the Husband played a role in caring for the children, though also that the majority responsibility fell to the Wife.
Given the Husband has been living in (country omitted) for nearly 3 years, I am satisfied that the Wife has provided most of the children’s emotional and physical support since separation.
Assessment of Contributions
During a long marriage, the parties raised two children together. I am satisfied that the Wife made the significantly greater financial contributions because of the financial assistance provided by her parents and the use made by the parties of the Wife’s initial real estate contribution. Without the Wife’s initial contribution and the Wife’s parents’ subsequent contributions, I find the parties would not hold the property at Property B, their major asset. I am satisfied that the Wife has made a significantly greater contribution to the acquisition and conservation of the former matrimonial home since separation. The Wife, through the Second Respondent, has conserved and probably increased the value of that asset.
I am satisfied that the Husband made the greater non-financial contributions to the building of Property B, but that given the Wife’s greater role domestically and in caring for the children, their non-financial contributions should be assessed as approximately equal.
Given my findings, I assess the Wife’s contribution entitlement at 65% and the Husband’s at 35%.
The effect, if any, of any proposed order upon the earning capacity of each party
This is not a relevant factor.
Relevant Section 75(2) Factors
The age and state of health of each of the parties.
At the date of hearing, each party was almost 54 years of age. The Wife deposes to good health. The Husband raises no health issues.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
As at the date of swearing her Financial Statement in October 2014 and as at the date of hearing, the Wife was not in the paid workforce. Her sole source of income was a Newstart Allowance of $259 a week. According to her Financial Statement, the Second Respondent was contributing an estimated $50 a week towards her household expenses and was meeting the interest only payments on the mortgage to (omitted) in the sum of $1100 a month. The Wife disclosed expenses of $446 a week, to having minimal assets beyond the home, and to owing substantial sums to the Second Respondent, to (omitted) and to Mastercard. According to the Second Respondent, as at July 2015, in addition to the amounts sought in her claim, the Wife owed the Second Respondent $55,704 and that figure is increasing every month. The Wife says she also owes her mother the $260,000 her parents advanced to the parties for the purchase of Property B. The Wife deposes to working hard over many years but to having no savings. She says she has tried to find work since she lost her job with (employer omitted) in October 2013, but without success. She believes and I accept, that her age is an impediment to finding work.
As at October 2014, the Husband was earning a full time salary of $115,000 gross a year as (occupation omitted) at (employer omitted) based in (country omitted). He deposes to expenses in excess of his income, largely because he is paying off substantial credit card debts, ($80,000 as at June 2014) has a de facto wife who is not working while caring for their young baby. The Husband adduces no evidence from his partner as to their financial relationship, but the Husband says she is financially dependent on him. The Husband says he cannot afford to contribute to the (omitted) loan, and has therefore paid no instalments since April 2013. The Husband and his family in (country omitted) are renting their residence. While I find the Husband’s evidence inadequate as to his financial position from April 2013, I find it likely he is under financial strain.
However, the Husband is in the full time workforce and has the greater opportunity to generate income and therefore acquire assets, borrow to invest and to contribute to superannuation. Although modest, the Husband also has the greater superannuation entitlement. I give some weight to these findings.
The responsibilities of either party to support any other person.
The Husband says he has responsibility for his de facto wife and child.
The eligibility of either party for a pension or benefit under any superannuation fund or scheme and the rate being paid to either party.
The Wife is in receipt of Newstart Allowance.
A standard of living that in all the circumstances is reasonable.
The Wife will be required to re-house after the former matrimonial home has been sold. She has the two adult children living with her. She has not re-partnered. The Wife deposes to a lack of certainty about being able to share a home with the Second Respondent after Property B has been sold, given the conflict that has arisen between them as a result of issues raised in these proceedings. I find that both the Husband and the Wife face a diminution in their standard of living when these proceedings are finalised, though as already noted, I am satisfied the Husband is in a better position than the Wife to improve his financial situation over time. I have regard to this finding.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
The Husband will be required to meet the $25,000 component of the debt to (omitted). The Husband is also likely to face a costs application from the Second Respondent, given his approach to this litigation. I have regard to these matters.
Assessment of section 75(2) factors
The Court must weigh all the section 75(2) factors together and then make one adjustment.[27]
[27] Tomasetti & Tomasetti [2000] FamCA 314
Mr Dura for the Wife submits that the Wife should be entitled to 70% of the net proceeds of sale of Property B, after payment to the Second Respondent, excluding the (omitted) loan from the figures. Mr Ford for the Husband submits that the Wife should be entitled to 60% of the net proceeds of sale of Property B, after payment to the Second Respondent, but with the deductions before distribution to include at least a $120,000 component of the (omitted) debt. Neither party’s counsel addressed me on the percentage division which should apply if their position on the (omitted) loan did not succeed, or on the percentage division which should apply if the parties’ additional assets including superannuation are included.
On a weighing of the factors to which I have referred under s.75(2), I have decided the Wife will receive an adjustment of 5%. This means the net assets of the parties will be divided as to 70% to the Wife and 30% to the Husband. As already noted, the Husband will pay $25,000 of the (omitted) debt (or whatever amount remains payable to discharge the loan) from his 30% share.
Is the result just and equitable?
The Court must be satisfied that the actual orders provide for a just and equitable distribution of the property of the parties.[28]
[28] Family Law Act 1975 (Cth), s.79(2)
The parties have property available for distribution with a net value of $634,495.42 inclusive of superannuation. The Wife seeks a transfer of the Mazda 3 motor vehicle and the (omitted) shares to her. The parties agree they will otherwise keep the assets in their possession. The parties agree the Property B home will be sold. Except as determined in relation to the (omitted) debt, the parties agree that each party will be responsible for his/her own debts which on the Wife’s side, though not sought by the Second Respondent in this case, may include repayment to the Second Respondent of the contributions she has made to the (omitted) loan on the parties’ behalf and repayment of other funds borrowed.
Excluding the Property B home, the Wife will have net assets in her name with a value of $24,829, including the car, the (omitted) shares, her superannuation. Excluding the Property B home, the Husband will have net assets (all superannuation) in his name with a value of $28,649. If the Wife is to receive 70% and the Husband 30% overall, then the Wife is entitled to receive $37,434.60 from those assets [70% of $28,649 + $24,829] which would require the Husband to pay to the Wife the sum of $12,605.60 to effect an overall 70/30 result.
Counsel for each of the spouse parties, submitted percentage positions on the sale proceeds of the Property B home only, and did not address me on the overall net asset position. I have determined the Wife will receive 70% of the overall net asset pool as I have identified and the Husband 30% less $25,000. To achieve this result, the Wife will receive a payment of $12,605.60 from the Husband as well as 70% of the sale proceeds after payment of sale costs, payment of $648,982.58 to the Second Respondent and payment of $120,000 to (omitted). The Husband will receive 30% of the sale proceeds after the same deductions, and will pay the balance of the debt to (omitted) from his 30% share.
On the figures agreed, the sale of the Property B home will realise $1,375,000 less sale costs, less $648,982.58 (payable to the Second Respondent) less $145,000 (payable to (omitted)). In order of priority at settlement of the sale, the Wife will receive 70% of the balance of $1,375,000 less sale costs, less $648,982.58, less $120,000. That is approximately $403,212.19 (if sale costs are estimated at $30,000). She will then receive the adjusting payment of $12,605.60 for the assets excluding Property B, to give her 70% overall. The Husband will then receive 30% of the balance, from which he will pay $25,000 to (omitted).
Having regard to my findings in this case, I am satisfied that the orders set out at the beginning of these Reasons are just and equitable.
The Second Respondent’s Counsel tells the Court the Second Respondent will be seeking her costs from the Husband. Given the Husband discloses no other source of funds from which to meet any costs order, I accept the Second Respondent’s counsel’s submission that any costs application against the Husband should be determined before the Husband receives his share. The order in relation to the Husband’s payment from the net sale proceeds will therefore be stayed pending finalisation of any costs applications.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Date: 11 April 2016
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Stay of Proceedings
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Jurisdiction
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Procedural Fairness
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