Senangus & Senangus

[2007] FamCA 1376

FAMILY COURT OF AUSTRALIA

SENANGUS & SENANGUS [2007] FamCA 1376

FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Husband found to have made greater contributions, particularly in regard to initial capital and ownership of family business. Husband’s greater entitlement adjusted by virtue of his failure to meet mortgage repayments in post separation period whilst residing in former matrimonial home

FAMILY LAW – PROPERTY SETTLEMENT – SECTION 75(2) FACTORS – Not found to warrant adjustment to the relative entitlements of the parties

FAMILY LAW – PROPERTY SETTLEMENT – JUST AND EQUITABLE – The proposed orders held to be just and equitable despite the disparity in the entitlements of the parties

Family Law Act 1975 (Cth)

APPLICANT: Ms Senangus

RESPONDENT: Mr Senangus  

FILE NUMBER: PAF 322 of 2005

DATE DELIVERED: 23 November 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 12 & 13 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Neill Macpherson

SOLICITOR FOR THE APPLICANT: Sarah Bevan & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the parties do henceforth hold the property known as and situate at L (“[the L property]”) as tenants in common as 62.8 per cent to the husband and 37.2 per cent to the wife.

2. That within 90 days of this date the husband pay to the wife the sum of $188 604.10 whereupon the wife shall transfer to the husband the whole of her right, title and interest in the L property and the husband shall indemnify the wife and forever keep her indemnified with respect to all outgoings and liabilities in relation to the said property.

3. That, in the event of the husband failing to comply with Order 2 of these Orders within the time therein provided, the wife shall be entitled to apply on 21 days notice for an order for sale of the said property.

4. That the wife indemnify the husband and forever keep him indemnified with respect to any liability of the husband to the insurer of the Mitsubishi Solara motor vehicle formerly possessed by the parties.

5. That, save to the extent provided by these Orders, each party retain absolutely and beneficially all other property real or personal in the possession or ownership of either of them.

6. That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 322/2005

MS SENANGUS  

Applicant

And

MR SENANGUS  

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to settlement of property. The wife, the applicant in the proceedings, sought that she be paid one half of the current equity of herself and her husband, the respondent in the proceedings, in their former matrimonial home known as and situate at L (“[the L property]”), a sum said to approximate $253 000. Upon payment of such sum the wife would transfer her interest in the L property to the husband.

2. The husband sought to acquire the wife’s interest in the L property, upon payment to her of the sum of $15 000. The ambit of the dispute is thus defined.

Credit

1. Credit does not ultimately assume significance in the proceedings, notwithstanding some curious financial transactions and the comparative absence of readily acceptable explanations for them.

2. Each party presented as an essentially honest witness. The difficulty under which both parties have laboured is the absence of source documentation in relation to a number of controversial transactions. As a perusal of the Court file would reveal, each party filed affidavits by relatives who are domiciled in India supporting their contentions with respect to disputed financial transactions.

3. It was proposed that cross-examination of the overseas witnesses occur by telephone. Though the only practical option, such a course was clearly less than ideal, particularly given the potential for effective cross-examination to require witnesses to be directed to source documentation.

4. Having been informed, reliably there is no doubt, that source documentation in relation to the most significant disputed financial transactions was not available, if in fact it existed, the Court suggested that cross-examination of witnesses half a world away by telephone would be unlikely to impact upon the probabilities.

5. Counsel for the wife did not dispute that proposition. Nor did the husband. It must be remembered that the husband, who is not legally trained, was unrepresented in the proceedings. His acquiescence in the Court’s suggestion did not adversely affect his case. To the extent that the Court indicated during the trial that the evidence of witnesses in India was unlikely to impact upon the probabilities in relation to disputed transactions, the course of oral evidence of the parties re-enforced that observation.

6. Rather than on credibility, the Court’s findings with respect to disputed financial transactions turn more on the burden of proof and the standard of proof. As will be seen, the position is, in essence, that neither party has been able to prove his or her version of disputed financial transactions on the balance of probabilities. To the extent that there is documentation, the documentation is equivocal. That could not have changed by reference to the evidence of the parties’ overseas relatives in the absence of documentation which, it is clear, was never going to materialise and may not even have existed.

7. Ultimately, although it is less than entirely satisfactory, the Court is unable to make findings of fact in relation to the disputed financial transactions. However, the Court is satisfied that the evidence which it has, particularly having regard to the source documentation tendered, does enable sufficient findings to be made to facilitate a just and equitable determination of the dispute.

Material Facts

1. The material facts reflect the implications of the Court’s conclusions with respect to credibility and, more significantly, the burden of proof in relation to disputed financial transactions.

2. The husband was born in November 1966. He is accordingly 41 years of age. The wife was born in December 1972. She is accordingly 34 years of age.

3. The parties married in India in October 1999.

4. The husband had been living in Australia for some years prior to the marriage and, in 1995 commenced the business which became, and remains, P Pty Limited (“[P Pty Ltd]”). The husband appears at all material times to have operated P Pty Ltd as a sole trader and that continues to be the case at present.

5. The husband acquired interests in real estate in India prior to the commencement of cohabitation. It has been conceded by learned Counsel for the wife, sensibly in the Court’s view, that such interests do not assume significance in these proceedings having regard to the absence of direct or indirect contributions with respect to them on the part of the wife and, so far as they might represent a financial resource, the duration of the cohabitation of the parties and the time which has elapsed since they separated in the light of the contribution history of their relationship.

6. At the time the parties married the husband thus had his interest in P Pty Ltd and, it is common ground, savings of approximately $44 000.

7. The wife came to Australia in February 2000. The parties then commenced to occupy rented accommodation.

8. It is common ground that from the date of marriage until October 2002 the wife’s paid employment was limited to some casual earnings which did not exceed the threshold at which income tax returns were required to be filed. There is no precise evidence as to the relevant thresholds, but the wife’s evidence leaves little doubt that her external earnings in this period were modest.

9. Potentially more significantly, the wife assisted the husband in the conduct of P Pty Ltd’s business. The parties disagree as to the nature and extent of the wife’s contribution to the business activities of P Pty Ltd.

10. The Court prefers the wife’s evidence to that of the husband in relation to that topic, and does so for a variety of reasons. The husband conceded that the wife did some work in and for P Pty Ltd. His evidence in that respect was somewhat vague, but generally suggested her input to have been minimal. The wife gave impressive factual details of the work she claims to have done for P Pty Ltd. More impressively, the wife did not seek to embellish the nature or significance of her efforts on behalf of P Pty Ltd, and readily conceded that the husband at all material times was primarily responsible for P Pty Ltd’s business activities. The husband’s inability to effectively cross-examine the wife in relation to her allegations did not assist his endeavours to have his version of events preferred to hers.

11. It is clear that the overwhelming financial contributions during 2000, 2001 and until October of 2002 were those of the husband. The husband’s income tax return for the year ended 30 June 2000 suggests a taxable income of approximately $6000 for that year. The source of that income was P Pty Ltd which generated gross income of $91 962 from which expenses of $85 955 were paid and claimed to produce a profit of $6007. The husband’s earnings for the year ended 30 June 2000 were thus modest.

12. For the year ended 30 June 2001 the husband had a taxable income of $2302 by virtue of P Pty Ltd generating a profit of $4311 for that year. Notwithstanding the levels of his reported incomes, the husband had, by May 2001, savings (inclusive of the $44 000 which he had at the date of marriage) of about $107 669.

13. For the year ended 30 June 2002, according to the husband’s amended Notice of Assessment, the husband’s taxable income was $28 493.

14. The wife travelled to India and the US for approximately 71 days in December 2000. The husband was with her for a short part of that period. The cost of that trip was financed by the wife’s family. The wife travelled to the US for approximately 22 days in April 2001.

15. In May 2001 the parties purchased the L property for $450 250. The husband contributed $107 669 from his Westpac Banking Corporation (“Westpac”) account towards the purchase. The balance of the purchase price, approximately $350 000, was borrowed from the AMP. Thereafter, until October 2002 the husband alone provided the funds for the instalments on the AMP mortgage to be met.

16. The parties separated in about September 2001 for about 3 months before resuming cohabitation. The husband gave the wife $15 000 at that time. That is not in contest, nor is the wife’s assertion that she subsequently repaid the husband $2000 of that sum. The husband was with the wife in India for most of the three months during which she was absent from Australia. It can be inferred that the parties lived on the $15 000 which the husband provided in September.

17. The parties returned to Australia in early 2002 and resumed cohabitation.

18. In March 2002 the wife returned to India and was absent from Australia for about 46 days. The wife was with her family and was financially supported by her family during that period.

19. The wife commenced employment with S Company in about October 2002, earning approximately $50 000 per annum.

20. In December of 2002 the parties travelled to India and, on their return to Australia, the husband again traded through P Pty Ltd and the wife continued her employment with S Company.

21. Thereafter, according to their tax returns, the husband had a taxable income of $21 564 for the year ended 30 June 2006, $27 616 for the year ended 30 June 2005, $53 161 for the year ended 30 June 2004, $38 346 for the year ended 30 June 2003.The wife had a taxable income of $66 152 for the year ended 30 June 2004, $30 318 for the year ended 30 June 2003.

22. Subject to the matters to which reference will later be made, until the parties separated in the first quarter of 2004, the parties contributed their earnings for legitimate matrimonial purposes of one kind or another, including payments on the AMP mortgage with respect to the L property.

23. In August 2003 the parties travelled to India. They were there for some 16 days before they returned to Australia. It is common ground that the parties brought back to Australia with them funds of not less than $48 000 and possibly as great as $69 000. The wife claims that the funds were provided by her family. The husband claims that the funds were provided by his family. Relatives support each party’s claims although no source documentation supportive of either party’s claims has emerged. The parties have differing versions of the basis upon which the monies were allegedly provided.

24. As with the source of the funds themselves, the evidence does not establish on the balance of probabilities who provided the funds to the parties or upon what basis they were provided. Reference was earlier made to the onus of proof and the inability of either party to establish his or her claims on the balance of probabilities. Each party’s version is as probable, or improbable, as the other, and neither can realistically be preferred.

25. It is clear from bank records that on 18 August 2003 $25 000 was deposited to the wife’s Commonwealth Bank of Australia (“CBA”) account. On 20 August 2003 a further $22 000 was deposited to the account. Other than by inferring that the monies having been deposited into the wife’s account it was more likely that the wife’s parents provided those monies, the Court could not conclude that such was the case. Whilst the Court suspects that may have been the case, it is not able to elevate that suspicion to the status of proof on the balance of probabilities.

26. It is reasonably apparent that those monies were then deposited (as to $25 000 on 19 August 2003 and as to $22 000 on 21 August 2003) to the AMP mortgage account, the balance of which was accordingly reduced from ($322 903.34) to ($275 903.34).

27. On 12 September 2003 $50 000 was deposited into the AMP account, the balance thereby being reduced to ($223 576.30). The wife asserts that her savings generated the funds which enabled that transaction to occur. The wife did in fact on 12 September 2003 withdraw $50 000 from her CBA account. She had, the previous day (11 September 2003) deposited from an ING account $53 650 into her CBA account.

28. Unfortunately the Court does not have before it the ING records. They would probably have made for interesting reading. Be that as it may, the wife may have accumulated savings in the order of $50 000 in the 12 months prior to these transactions having regard to her tax returns, but, if she did, that could only have been, as the husband asserts, because the husband was paying all else. The evidence does not establish that any part of the $50 000 was referrable to sources external to the parties to the marriage.

29. Similar observations apply to subsequent reductions of the AMP mortgage balance in late 2003 ($12 000, $9000, $20 000). The capacity of the parties to have generated these funds from their earnings at that time, over and above the $50 000 to which reference has been made, appears improbable but the evidence does not enable a finding that the funds were in fact contributed by or on behalf of either party, or if they were, by whom they were so contributed.

30. Those funds were in part suggested by the husband to have been “agency payments”, a contention inconsistent with the accounting records for those periods to which the joint expert had regard when preparing his report. It can safely be inferred that the husband had the benefit of $60 000 generated during the course of cohabitation via these transactions. No documentary evidence to which the court has been referred substantiates his allegations in relation to the fate of those monies.

31. On 11 November 2003 the husband withdrew $20 000 from his Westpac account and paid that into the AMP mortgage account.

32. What emerges from these transactions is that the wife disposed of $65 000 generated during the course of the parties’ cohabitation. On 26 December 2002 and 12 May 2003 the husband drew cheques on his Westpac account in favour of himself at his Centurion Bank Limited (in India).

33. The balance of the AMP mortgage had, by 5 December 2003, been reduced to ($179 098.46).

34. On 10 December 2003, pursuant to a transaction which ultimately is significant more as a matter of curiosity than anything else, the wife drew down $50 000 against the AMP mortgage, the balance of which thus became ($229 098.46). That sum was deposited to the husband’s Westpac account on the same day. Five days later it was withdrawn by the husband. On that day the $50 000, together with a further $1096.33, was re-deposited to the wife’s CBA account.

35. To the extent that the husband asserts that this transaction constituted a partial property settlement by him to the wife, that contention is palpably unsustainable. The funds thereafter formed part of a $55 105 withdrawal which the wife made from her CBA account, those funds being transferred to the ING account to which reference has previously been made.

36. Thereafter the funds were returned, albeit as part of $65 000 which came to the wife’s account on 11 March 2004 from the mysterious ING account.

37. The wife then, on 12 March 2004 withdrew and paid to a military gentleman in Singapore $65 028.08. That was said to have been in repayment of family debts, none of which has been proved in these proceedings on the balance of probabilities. The timing of this dissipation of funds, relative to the parties’ separation is likely to have been more than coincidental.

38. Subsequent to December 2003, and until May 2005, the husband made the payments on the AMP mortgage over the L property. The best figures available to the Court suggest that his failure to pay the mortgage between that date and the present resulted in the mortgage balance increasing from ($205 451) up to ($243 613). The balance in the account as at the end of December 2003, and after the transactions discussed earlier had concluded was ($228 342.75).

39. On or about 14 January 2004 the husband paid to the wife $35 500, the receipt of which is not in dispute. Where that money came from, and where it was deposited, are unclear, neither the husband’s Westpac account showing the debit nor the wife’s CBA account showing a corresponding credit. It is conceivable that the ING account statements would have shed some light on the topic.

40. Albeit at different times, it is thus apparent that the wife has had the benefit of $100 500 of which nothing appears to remain whilst the husband has had the use of $60 000 of which nothing appears to remain.

41. The parties were both in India in early 2004. On their return to Australia in February 2004 the wife commenced to occupy other accommodation whilst the husband resumed occupancy of the matrimonial home. That occupancy continues to this day.

42. A motor vehicle in the possession of the wife was removed by the husband in about November 2004. The wife made a successful insurance claim on the vehicle on the basis that it had been stolen. Approximately $11 500 was paid out to Esanda in satisfaction of the loan relating to the acquisition of the vehicle, and the wife received $6928 net. Far from being stolen, the vehicle was in the possession of the husband who gave evidence that he sold it for $8300. Unsurprisingly one might think, the insurance company, upon learning the true facts relating to the motor vehicle, demanded from the wife repayment of the $11 500 paid out to Esanda. Counsel for the wife submitted that the wife had no defence to such claim. That concession appears to have been well founded.

43. The wife has continued in employment substantially throughout the period since separation save for a number of visits to India. The husband has continued to operate the business of P Pty Ltd, save for his trips overseas to India. The wife’s employment was interrupted briefly during this year whilst she travelled to India for liver surgery to donate part of her liver to her mother. The wife thus took unpaid leave from 1 July 2007 to 8 October 2007.

1. The wife gave evidence, which the Court accepts, that she has ongoing requirements for medical attention by virtue of consequences and/or side effects of the liver surgery which she underwent in India. The wife has however continued in her current employment without diminution of her earning ability. The husband continues to carry on business as a sole trader through P Pty Ltd.

The property of the parties

1. The property of the parties is ultimately not highly controversial. The L property was originally valued at $660 000. When the case opened, Counsel for the wife indicated an expectation that an updated valuation of the property would suggest a figure of approximately $750 000 to be the current value of the L property.

2. During the course of the trial the joint expert who originally valued the property (in February 2006) of $660 000 produced an updated valuation in the sum of $750 000. That valuation was supported by a number of comparable sales, four of which were in the same street as the parties’ property. One of the comparable sales was seven houses removed from the parties’ house.

3. The husband, concerned that the increased value of the property would mean that he would have to find a greater sum to satisfy the wife’s entitlement, sought to establish by cross-examination of the valuer, Mr R, that the property was worth less than $750 000. The thrust of the husband’s challenge to Mr R’s valuation was that, despite promises made by the Prime Minister in 2004 when seeking re- election, there had been six interest rate rises since that time which the husband submitted to be incompatible with a $90 000 increase in the value of the property in under two years.

4. Mr R’s comparable sales included a sale completed pursuant to a contract for sale exchanged on or about 3 November 2007 (of a neighbouring property) and a sale completed pursuant to a contract exchanged in October 2007 (of another neighbouring property) by which time five interest rate rises had occurred and a sixth was generally expected. The sales evidence relied on by Mr R is supportive of his assertion in cross-examination that the Sydney inner west market was “bucking the trend” in relation to property values. The Court is satisfied that the value of the L property is $750 000 as determined by Mr R.

5. The wife has jewellery which she suggests is worth $1300. The amount is minimal; it is not based on expert opinion evidence and should be disregarded.

6. The single expert opinion evidence establishes a value of $75 460 for P Pty Ltd.

7. The wife has bank accounts in this country of $7270.

8. The husband had $50 000 according to his financial statement of 1 May 2005. The evidence does not suggest that he continues to have funds of that magnitude. The husband’s bank statements, and the valuation of P Pty Ltd also suggest the improbability of the husband having funds of that magnitude.

9. At the end of 2003 the husband’s Westpac account had a credit balance of approximately $18 000. Thereafter the account continued to be in credit with, at times, as much as in excess of $100 000 in the account. It is to be remembered that the account is not just the husband’s personal account but also the trading account for his business. Perusal of the husband’s bank accounts, and the trading records of P Pty Ltd suggest that the husband has probably not had more than about $30 000 net in his account for any significant time in the period since separation.

10. Given the time since the parties have separated, and the short duration of their cohabitation it is preferable that the wife’s $7270 of savings and whatever the husband might currently have be excluded from the list of assets to which reference should be made.

11. So far as household contents and furniture are concerned, the non-expert opinion evidence of the parties does not provide a reliable basis for concluding that the amounts referred to by each of their financial statements should be included in the assets of the parties.

12. The wife has a motor vehicle in respect of which she owes almost as much as she believes the vehicle to be worth. The minimal equity the wife has in that vehicle justifies excluding it from the list of relevant assets.

13. The husband received $8300 from the sale of the motor vehicle to which reference has earlier been made and the wife received some $6928. The figures are similarly close to each other to justify omitting both from the balance sheet.

14. The relevant assets for the purposes of determining the parties’ entitlements are accordingly worth $825 460 {$750 000 + $75 460 = $825 460}.

15. So far as liabilities are concerned, the AMP mortgage has a current balance of ($243 613). The wife has a contingent liability, which will in all probability materialise, of $11 500 to the insurance company which erroneously paid out on the “stolen” motor vehicle discussed earlier. The parties having retained the benefits of sale of that vehicle, that sum should be taken into account. As it is the wife to whom the insurance company looks, the wife will be responsible for the debt when the orders for settlement of property are implemented.

16. So far as the wife’s alleged debt to her mother of $48 000 with respect to her surgery and related expenses in India earlier this year is concerned, without in any way depreciating the humanitarian value of what the wife did in that regard, as her learned Counsel fairly conceded, that liability ought not be taken into account to the detriment of the husband.

17. The relevant liabilities thus total $255 113 {$243 613 + $11 500 = 255 113}.

18. The asset pool is accordingly worth $570 347 net {$825 460 - $255 113 = $570 347}.

19. The wife has a superannuation interest which is worth $10 446.

20. Having regard to the period of cohabitation during which the wife made contributions to the fund (14 months), the wife’s youth, and the years before the wife’s superannuation interest is likely to vest in possession, the Court prefers treating such interest as a financial resource rather than as property.

Contributions

1. As recorded in the material facts appearing earlier in these Reasons, the husband made a very substantial initial contribution of $44 000. By May 2001, 18 months into cohabitation, that sum had increased to approximately $107 000. How it did remains somewhat of a mystery having regard to the husband’s tax returns for the relevant years.

2. Whilst the wife was making contributions as a homemaker during that period, making modest financial contributions from casual employment and making further indirect contributions by way of assistance to the husband in his business, the reality is that the savings must have grown from $44 000 to $107 000 in a period of approximately 18 months primarily through the contribution of funds by P Pty Ltd. P Pty Ltd was an entity which the husband had operated for some years prior to the marriage and, as the wife fairly conceded, was more influenced by the efforts of the husband than of the wife in terms of its overall success.

3. As learned Counsel for the wife correctly suggested, the husband’s contribution to the acquisition of the L property could be regarded as having been somewhat greater than $44 000 but less than $107 000.

4. The contributions of the husband could, on the wife’s own evidence, be seen as appreciably greater than those of the wife from the date of marriage until October 2002. Thereafter, until the parties separated 14 months later, the contributions could be seen as approximately equal.

5. Implicit in these conclusions is the inability of either party to prove on the balance of probabilities the capital contributions from family members asserted by each of them and/or liabilities resulting from such transactions. To the extent that source documentation may have established those matters, the source documentation has not materialised.

6. To the date of separation, at which time there is no reliable evidence of the net value of the total assets of parties, the contributions of the husband could be seen as approximately 70 per cent and the wife 30 per cent. Implicit in that conclusion is recognition of the fact that the wife had the use of some $100 500 of funds generated during the marriage and utilised by her whilst, for his part, the husband had $60 000.

7. The initial capital contribution of the husband and its impact on the acquisition of the L property remain major contributions by the husband, unmatched by any contribution by the wife. Although there is no valuation of P Pty Ltd at the date of marriage, the evidence does not suggest that its likely worth has significantly increased since that time, or that its business is materially more successful now than it was then.

8. In the post separation period the husband has had the use and enjoyment of the former matrimonial home. His failure to meet the mortgage payments, which has increased the mortgage balance by approximately $20 000, since he stopped making payments in May 2005 should not be overlooked. The evidence does not establish that the husband’s financial position was materially different after May 2005 compared with what it had been prior to that time, during which he made the mortgage payments to the AMP as and when they fell due.

9. The post separation period cannot advance the husband’s claim. Had the husband met all of the outgoings on the property, the Court would incline to the view that the contribution based entitlements of the parties ought not be altered by virtue of the post separation period.

10. The post separation period entitles the wife to a modest adjustment of her contribution based entitlement. To adjust in her favour by approximately $6000, would put the wife in the position in which she would have been had the husband continued to meet his obligations with respect to the AMP mortgage over the L property.

11. It follows that the Court concludes the contribution entitlement of the husband overall to be $393 242.90 {(70% x $570 347) - $6000 = $393 242.90}, and that of the wife $177 104.10.

Section 75(2)

1. The earning capacity of the parties is not dissimilar. The husband derives his income through P Pty Ltd, the value of which is included in the asset pool. There is, having regard to the aftermath of the wife’s liver surgery earlier this year, some “cloud” over the wife’s long term ability to earn. As against that, there is no evidence of the wife’s earning capacity has been adversely impacted by the surgery which she has undergone.

2. The wife has a modest superannuation interest.

3. The evidence does not suggest any other s 75(2) factor of relevance in these proceedings.

4. To make no adjustment pursuant to s 75(2) would in the circumstances be an appropriate course, recognising that the husband’s prima facie entitlement to a modest adjustment because of the wife’s superannuation interest is offset by the comparative uncertainty surrounding the wife’s long term health and earning ability.

5. Section 75(2) factors ought not materially influence the overall entitlements of the parties for reasons which the Court has endeavoured to explain.

6. It follows that the entitlements of the parties to the asset pool should be 68.9 per cent to the husband and 31.1 per cent to the wife.

Section 79(2)

1. It remains to consider whether the proposed division of the property of the parties is just and equitable having regard to s 79(2) of the Act. The case is unusual. The cohabitation was of short duration but that of itself is not a matter of significance. Of the proven capital contributions, those of the husband require ongoing and substantial recognition. It is difficult to suggest how, but for the husband’s pre-marriage savings, the parties could have acquired the L property or any other real estate of that value at that time. The husband had P Pty Ltd at the date of marriage.

2. The accumulation of funds by the parties between the date of marriage and October 2002 and perhaps thereafter, is difficult to reconcile with the undisputed evidence of the parties’ sources of income and the quantum of such income. The Court suspects that there are a number of possible explanations for the parties’ capital gains, speculation about which is unproductive. Ultimately, as noted at the outset of these reasons, the Court approaches the disputed financial transactions on the basis that the party alleging same bears the onus of proving them on the balance of probabilities. The absence of source documentation, leaving the case one of claim and counter claim in circumstances where there is no circumstantial evidence impacting on the probabilities denies either party the ability to rely upon substantial capital contributions from family members which each has alleged.

3. To see the husband depart from the marriage with 68.9 per cent of the total assets, or $216 138.80 {$393 242.90 – $177 104.10 = $216 138.80} more than the wife will depart with is in all the circumstances just and equitable, particularly having regard to the evidence that the parties “leaked” approximately similar amounts of money during cohabitation (the wife $65 000, the husband somewhat earlier $60 000), and to the fact that the husband paid the wife $35 500 at about the time of separation and retained at that time according to his Westpac bank statements funds of similar magnitude.

4. In all the circumstances, the Court concludes the proposed order for settlement to be just and equitable.

5. The husband should have the opportunity to acquire the wife’s interest in the L property. In order to do so, he would need to pay to the wife the sum of $188 604.10. After the wife repays the $11 500 which the insurance company will surely, and justifiably, seek from her, the wife would have the $177 104.10 to which she is entitled. If the husband has not paid such sum to the wife within 90 days, the wife would be entitled to require the sale of the property and division of the net proceeds of sale in shares of 37.2 per cent to the wife and 62.8 per cent to the husband.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate

Date:  23 November 2007